Often a third party reviews a safety plan at a construction job site and its conclusions will provide your lawyer great insight as to problems on the site and the action or inaction of the General Contractor in response to that assessment.
The last blog looked into the kind of documentation that might be kept at a job site by a Project Manager or Project Superintendent. We looked at meeting notes and pictures. Documentation, especially in this day and age, is extensive. You would expect that the person in charge of the job site would be in regular email contact with members of the subcontractor’s office and crew. There will also be text messages. Significantly, they might indicate that certain events could be anticipated, including the potential for a serious accident.
In previous blogs on construction site accidents, I have discussed communication. I was focusing on communication of an already recognized danger and also focusing on any proactive communication that could have minimized the risk of an accident occurring. But what about the safety practices that were used, or not used, by the subcontractor whose employee was hurt? Shouldn’t a Project Manager or Project Superintendent ask the subcontractor’s foremen or main office personnel what the safety practices are of that company? A failure to do so can lead to a finding of negligence. I have described the General Contractor’s representative on the site as the “captain of the ship”. Any Project Manager or Project Superintendent who is the least bit honest will acknowledge this duty. If he/she doesn’t acknowledge the duty, it can be proven through many other sources.
Sometimes there are third parties who are invited to the site. It could be a company hired by the General Contractor or subcontractor to evaluate the safety of the job site. Certainly it is very important, if such a company has been consulted, to find out what is in that safety report or evaluation. In the personal injury case, it would be very helpful if someone who is “the captain of the ship” didn’t inquire what went on in that inspection by the third party? If there hadn’t been an inquiry as to what the third party found, it follows that there would be no familiarity with what the third party recommended for safety measures.
This audit of sorts would review whether a site specific safety plan or a job hazard analysis had been done. Oftentimes, if one is done, it is a boilerplate, generic kind of safety plan or hazard analysis by the very subcontractor whose employee got hurt. Therefore, even if one was done, it may be insufficient. But getting back to the Project Manager or Project Superintendent, he/she should ask for that third party’s safety evaluation.
The past blogs have referred to the conduct of the injured worker. As stated, he/she has a duty of reasonable care in carrying out the work. But the way the site has been handled, may not permit the injured worker to have taken the precautions that in an ideal world would have been taken. OSHA, the agency in charge of job site safety and well-known to everyone, will come to investigate a serious accident or fatality. As part of that investigation, they will take pictures and interview witnesses. What the witnesses say on the date of the accident or shortly thereafter are especially important and generally quite reliable, given how close in time they are to the accident. OSHA will look to assess the conduct of a creating employer and exposing employer. That is likely to be the employer of the injured worker. While that employer is not part of the personal injury claim because they are exempt from the employee’s personal injury suit we can learn from them what went on at the construction site. It may be that the client and his crew couldn’t take precautions because precautions weren’t implemented. That may reflect poorly on the employer, but I assure you it likewise reflects poorly on the person in charge of the site. We do well to remind mediators, judges and juries that the General Contractor, the party that is being sued, is there to provide an additional layer of safety. As defendants have conceded to me, “Safety starts with us [the General Contractor].”
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