Construction Site Accidents Constructions sites are inherently dangerous places, and construction site workers are continually in danger of injury. Many of these injuries are caused by employer negligence, defective equipment, unsafe conditions, ineffective safety management and other hazards common in building projects, construction zones, and construction sites. Construction Site Injury Statistics In 2006, the U.S. Department of Labor Bureau of Labor Statistics reported that over 935,000 people worked full-time as construction workers in California. The Bureau reports that for every 100 full-time workers, there were six recordable cases of injury (over 56,000). Included in that figure were about 21,000 cases where the worker missed at least one day of work and over 13,000 cases where the worker was forced to transfer jobs or face job restrictions due to the injury. In California, construction site fatalities have increased slightly over the last few years from 102 in 2003 to 122 in 2006. In 2006, the U.S. Department of Labor Bureau of Labor Statistics surveyed 117 of the construction site fatalities in California. The following list breaks down the frequency of cause: -
Falls: 47 -
Transportation incidents: 27 -
Contact with objects and equipment: 18 -
Exposure to harmful substances or environments: 18 -
Violent Acts: 3 -
Other: 4 Other hazards that can potentially cause either injury or death to a construction worker at a construction site include the following: Although it is virtually impossible to prevent all injuries from occurring at a construction site, employers are still obligated to provide a reasonably safe working environment. Industry standards, bolstered by statutes, regulations and ordinances, seek to minimize the risk that employees are exposed to at a construction site.
Occupational Safety and Health Act (OSHA)
The Occupational Safety and Health Act of 1970 (OSHA) sets forth a series of safety regulations that have been adopted by most states. These regulations apply to construction sites. In California, the Division of Occupational Safety and Health (better known as Cal/OSHA) is the main state agency charged with protecting the public and workers from safety hazards at the work site. As applied to construction sites, Cal-OSHA has set forth “Construction Safety Orders” in Title 8, Subchapter 4, of the California Occupational Safety and Health Regulations. Section 1502 indicates that the purpose of these orders is to “establish minimum safety standards whenever employment exists in connection with the construction, alteration, painting, repairing, construction maintenance, renovation, removal, or wrecking of any fixed structure or its parts.” The Construction Safety Orders also apply to excavations that are not covered by other specific orders. To view the Construction Safety Orders, click on the following link: http://www.dir.ca.gov/title8/sub4.htmlElsner v. Uveges
In 2004, the California Supreme Court ruled in Elsner v. Uveges., 34 Cal. 4Th 915 (2004), that Cal/OSHA regulations are admissible as standards of conduct in negligence actions against private third parties. The ruling was grounded on the legal doctrine of negligence per se, which imposes liability when a violation of a statute, ordinance or regulation causes an injury or loss. A plaintiff can establish a strong presumption of negligence against a defendant if he can show that the defendant violated a Cal/OSHA regulation that was intended to protect against the type of injury suffered by the plaintiff. For example, Section 1637 (b) of the Construction Safety Orders requires (in part) that scaffolds be constructed out of “wood or other suitable materials such as steel or aluminum members of known strength characteristics.” If a defendant provided a scaffold made out of an unsuitable material and that scaffold failed, causing the worker to fall and become injured, that violation would be the basis for a negligence per se claim, because the purpose of the regulation is to protect workers from injuries caused by falling. On the other hand, if the worker on the same scaffold was injured by a falling object, violation of the regulation would not be the basis of a negligence per se claim. Before Elsner, Cal/OSHA regulations were not admissible as a standard of conduct to establish a presumption of negligence. The California legislature amended the law in 1999 which led to the holding in Elsner. Employer Responsibilities under Cal/OSHA
California law imposes many responsibilities on employers. Some of the responsibilities are administrative by nature, but others are designed to make the workplace safer. Violation of the latter at a construction site can lead to accidents and employer liability. These workplace safety responsibilities include the following:
Establishing, implementing and maintaining an Injury and Illness Prevention Program Failure of Machinery Lock Out Devices Inspecting the workplace for unsafe and hazardous conditions Ensuring that employees have and use safe tools and equipment Warning employees of potential hazards with color codes, posters, labels or signs Establishing operating procedures for employees so they follow safety and health requirements Providing access to employee medical records and exposure records to employees or their authorized representatives Correcting cited violations by the deadline set in the Cal/OSHA citation and submit required abatement verification documentation. Employee Rights
Employees also have certain rights under Cal/OSHA. Employee rights concerning workplace and health include the following: the right to file a complaint and request an inspection of an unsafe workplace the right to bring unsafe or unhealthful conditions to the attention of the Cal/OSHA investigator making an inspection of the workplace the right to refuse to perform work that would violate a Cal/OSHA or any occupational safety or health standard or order, where such violation would create a real and apparent hazard to the employee or other employees the right not be fired or punished in any way for filing a complaint about unsafe or unhealthful working conditions, or using any other right given to employees under Cal/OSHA law Workers Compensation and Construction Site Accidents Under California Workers Compensation law, employers are responsible for employee injuries that happen on the job without regard to carelessness or fault. The trade-off is that employees are precluded from filing lawsuits against their employers for work-related injuries. California Workers Compensation law limits employee compensation to medical expenses, disability, vocational rehabilitation, death benefits and reasonable burial expenses. However, the law includes an exception which allows injured employees to file suit for injuries caused by an employer's intentional or willful act. Workers Compensation laws only preclude lawsuits against employers. Suits against third parties are generally allowed. A third party is generally liable for injuries to employees via a “third-party claim.” For example, an employee who is injured on the job when a defective boiler explodes would have a third-party claim against the manufacturer of the boiler. Third party claims are not limited by Workers Compensation law, and the employee can potentially recover all tort damages, including compensation for disfigurement, pain and suffering, loss of enjoyment of life and emotional distress. The Privette Line of Cases Construction work sites are unique in that they often include several levels of employers, contractors, and subcontractors. These work sites are sometimes referred to as multi-employer work sites. The problem for the injured employee in such situations is determining who is a third party and who is considered an employer for liability and compensation purposes. Thus third-party claims can become rather complex and tricky to litigate. Generally, California law provides that a property owner or possessor who fails to warn or repair a known or knowable concealed hazard can be held liable for negligence. However, the California Supreme Court limited the liability of an employer or property owner in such cases in a line of cases spawned by Privette v. Superior Court, 5 Cal.4th 689 (1993). Privette held that an employer or property owner is not liable for injuries that an independent contractor (hired by the employer or owner) negligently caused its employees. The Court reasoned that Workers Compensation adequately compensated those employees for that sort of injury. Privette did not address the situation where the hiring employer or owner could still be held liable for its own negligence in hiring the independent contractor. Several subsequent cases refine the Privette Doctrine. Under Toland v. Sunland Housing Group, Inc., 18 Cal.4th 253 (1998), an employee of an independent contractor cannot pursue an action against the person or entity who hired the independent contractor based on the theory that the general contractor or owner negligently exercised control over the workplace it had retained. However, Camargo v. Tjaarda Dairy, 21 Cal.4th 1235) (2001) held that Privette and Toland did not eliminate a negligent hiring cause of action against a hiring employer for injuries caused to an independent contractor's employees by the independent contractor's negligence, because those two cases only eliminated liability where the hiring employer is not negligent. Hooker v. Department of Transportation, 27 Cal.4th 198 (2002) further refined the law. It held that mere control over work site safety conditions is not enough to hold the employer/owner liable for an independent contractor's employee's injuries. To be held liable, the employer/owner must have “affirmatively contributed” to the employee's injuries through the exercise of that control. McKown v. Wal-Mart Stores, Inc., 27 Cal.4th 219 (2002) limits a premises owner's liability for injuries resulting from defective equipment. The owner is only liable if he supplied or selected the defective equipment or materials from which the equipment was made. In cases where the employer/property owner has no control over work site safety conditions, Kinsman v. Unocal Corp., 37 Cal.4th 659 (2005), holds that the employer/owner can only be found liable when the following three conditions are met: 1. The employer/owner knew or reasonably should have known of a hazardous condition on its premises; 2. The independent contractor must not have known about the condition and must have had no way to reasonably ascertain the hazard; and 3. The landowner must have failed to warn the contractor. Finally, Michael v. Denbeste Transportation, Inc.,137 CA.4th 1082 (2006) holds that the Privette Doctrine applies not only to employees of an independent contractor but also to subcontractors hired by the independent contractor.
Seek Experienced Legal Assistance
Construction site accident cases tend to be complex. Navigating through the Cal/OHSA regulations, California Workers Compensation laws and continually changing California case law requires attorneys with experience in construction accident law. The attorneys at Thon Beck & Vanni have extensive experience in successfully litigating construction site accident cases. Should you have any questions or wish to schedule a confidential consultation, contact the firm by e-mail or by telephone at (626) 795-8333.
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