The Role of Expert Witnesses in a Construction Accident Case and the relevant factors to assess conduct

In this blog, I will talk about expert witnesses. But let’s start with a cautionary tale: as the highest court of Massachusetts, the Supreme Judicial Court, has said, experts don’t decide cases, juries do. I assume that is because juries are the deciders of the facts. Experts can help to establish those facts, at least up to a point. This brings us to another cautionary tale, one that was related by a very esteemed federal judge: between facts and law, facts are far, far more important. I still believe that law is important, even crucial. The next blog will describe how a judge sets out the law in a construction site accident case. (Yes, some may minimize its importance but the law is critical to the handling of cases.) But, as I said, this blog concerns experts for construction cases so what does a safety specialist have to say about how construction job site should be conducted.

With a properly credentialed report, he/she should examine all the documents that have been produced in the case. The safety expert will then review the applicable OSHA guidelines. Commonly, the construction site experts look to OSHA’s multi-employer worksite policy. That policy identifies the responsibilities that an entity on the site has. These categories include: controlling employer, correcting employer, exposing employer, and/or creating employer. When suing the General Contractor, we are dealing with the supervisory authority over a work site. The entity with that authority, whether it is exercised or not, is called the controlling employer. Why? Because they have the power to correct safety and health violations that they see, or should see, on the site. They are to require other employers to correct the identified hazards. But even if the hazard hasn’t been identified, the controlling employer must exercise reasonable care to prevent and detect safety and health violations at the project site. Ignorance of a hazard that could have been discovered in the exercise of reasonable care is no excuse.

OSHA engages in a two-step process. The first step is to identify which category applies to a given entity. The General Contractor serves in the role of the controlling employer as established by the contract document and the course of performance. Then you can go to Step 2. Step 2 analyzes whether the employer’s efforts were sufficient to meet their obligations. It is worthwhile to look at the factors that determine whether the efforts were sufficient:

• • The scale of the project;
  • The nature of the work, including the frequency that the hazards change as the work progresses; and
  • The safety history and safety practices of the employers on site (more about that in a future blog)

How is the controlling employer to meet the burden of exercising reasonable care? It is required to conduct periodic inspections at a frequency based upon the points listed in the above. Furthermore, it must implement an effective system for correcting, and promptly correcting identified hazards. There must be compliance with the established rules and regulations for safety. This is best brought about by having an effective and graduated system of enforcement. Often that involves utilizing progressive disciplinary measures. Certainly, a potential safety hazard – consider, for example, a potential fall from a great height – should cause engagement immediately and sternly by the Project Manager. Of course, in this day and age, there are unbelievable resources that exist to educate those in charge of any of these matters.

In the course of the litigation of a serious construction case it will be important to see if anything has been produced that shows the Project Manager or Project Superintendent engaging his/her subcontractors on safety meetings. If there are no such documents, or at least if none have been produced, it indicates a total lack of oversight by the person in charge.

The state of mind of the subcontractor crew is relevant. If there is lax or tepid oversight on the part of the person in charge, that will not be lost on subcontractors. If they know that oversight is not occurring and will not be expected to occur, you would find a lack of attention to safety. This is human nature. The subcontractor crew will have a laissez-faire attitude. That is very unfortunate, given the data on the numbers of severe injuries that occur from an accident on a construction site.