Construction is a high-hazard industry for workers. There’s no shortage of potential causes of catastrophic injuries. Whether it is the risk of falling from rooftops, being injured by unguarded machinery, being struck by heavy construction equipment, being electrocuted, or inhaling silica dust or asbestos, workers risk their lives every time they step onto a construction site.
Statistics from the U.S. Bureau of Labor Statistics bear this out. Of the 5,486 fatal work injuries reported in the U.S. in 2022, 1,056 (19 percent) were construction workers. That means between two and three construction workers lose their lives each day. Of the approximately 2,804,200 reported workplace injuries in 2022, 169,600 (6 percent) were in the construction industry. That equates to roughly 464 construction workers suffering workplace injuries each day.
When those injured workers, or the families of deceased workers, bring litigation regarding their injuries or their loved one’s death, the litigation often becomes contentious and complex. With a list of possible defendants including property owners, contractors, subcontractors, architects and engineers, and suppliers and manufacturers of equipment, among others, all of whom likely bring to the litigation their own counsel, insurance policies, and perhaps insurance counsel, it’s no wonder the litigation can become complex.
For newer construction litigation practitioners representing injured workers, this complexity might obscure some basic tenets of their case. Based on my 25 years spent representing injured construction workers, here are four pieces of advice for newer practitioners that may help them craft winning case strategies, no matter how sprawling a particular construction injury lawsuit becomes.
Start with OSHA regulations to establish a duty of care, but review every relevant contract for additional parties who may have owed duties
Injured construction workers can look to both regulations from the U.S. Occupational Safety and Health Administration and relevant construction project-related contracts to determine which parties owed duties of care to them.
OSHA’s regulations mandate that contractors in construction projects, along with subcontractors, are responsible for a project’s safety conditions. Specifically, OSHA regulations state that “the prime contractor assumes the entire responsibility under the contract and the subcontractor assumes responsibility with respect to his portion of the work. With respect to subcontracted work, the prime contractor and any subcontractor or subcontractors shall be deemed to have joint responsibility.” That said, OSHA’s regulations make clear that in “no case shall the prime contractor be relieved of overall responsibility for compliance with the requirements of this part for all work to be performed under the contract.”
But beyond OSHA’s regulations, the contracts for a construction project may also impose a duty onto others beyond the contractors and subcontractors when their terms delegate safety responsibilities to other people or entities. This imposition of such a duty aligns with the Restatement (Second) of Torts §323, which states that “one who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking.”
Thus, newer construction litigation practitioners should as a matter of course obtain all relevant project contracts and review them carefully to determine who might have owed duties of care.
Non-compliance with OSHA regulations does not necessarily mean negligence, but there are several ways to establish safety standards
OSHA regulations can establish the industry standard for safety in a construction injury lawsuit. In some jurisdictions, such as Pennsylvania and New Jersey, violations of OSHA regulations are evidence of negligence but not of negligence per se. See Pa. Standard Civil Jury Instruction 13.110; N.J. Model Civil Jury Charge 5.10G. However, non-compliance with OSHA regulations does not necessarily mean a party was negligent. Likewise, compliance with those regulations does not necessarily mean a party was not negligent.
Even in the absence of violations of OSHA regulations, documents related to a construction project could be deemed to have put defendants on notice regarding a project’s particular safety issues. These include project bid documents, pre-job inspection reports, terms of relevant contracts, and minutes from pre-bid meetings, pre-job meetings, job site meetings, and scope meetings. These materials can play an important role in damage calculations, as repeated unsafe behavior in the face of documents providing notice regarding safety issues or protocols could boost a punitive damages argument by serving as evidence of a defendant’s systemic failure to maintain safe practices.
The guidelines of professional organizations may also establish safety standards, such as those from the American National Standards Institute, the National Institute for Occupational Safety and Health, the American Institute of Architects, the National Fire Protection Association, and the National Safety Council. Industry trade groups, such as the Construction Industry Manufacturers Association, contractors associations, and roofers associations may publish guidelines that plaintiffs’ counsel can use to establish safety standards. Counsel may also use defendants’ own internal policies and procedures as standards they failed to meet, leading to a plaintiff’s injuries or death.
Find the right experts, but be wary of inadmissible net opinions
Given the complexity of a construction project, plaintiffs’ counsel will need to offer expert opinions to boost their client’s case, and some jurisdictions might even require it. Not all experts, however, will have the right credentials.
Plaintiffs’ counsel should bring on experts who have OSHA certifications, especially OSHA 500, which is the certification for training others on construction industry safety practices. In addition, experts should have significant experience in general contracting or subcontracting, either as the person doing the work or the person overseeing the people doing the work (as a supervisor or a business owner). Plaintiffs’ counsel should avoid retaining as experts engineers who would opine on construction safety standards but lack experience in the industry, or an individual familiar with standards that are irrelevant to the case at hand, such as those from the American National Standards Institute, ASTM International (formerly the American Society for Testing and Materials), or Building Officials and Code Administrators International.
Many jurisdictions, including New Jersey, will deem an expert’s opinion to be an inadmissible “net opinion” when it is a bare conclusion not supported by any facts in evidence. Plaintiffs’ counsel and their experts can avoid net opinions by providing expert opinions that are supported by factual evidence or other data, or that are explained and supported by the expert’s personal knowledge, education, training, and/or experience. To do so, plaintiffs’ counsel should use the discovery process to obtain as many project-related documents as possible that would provide factual support for an expert’s opinion.
Be prepared for defenses focused on the conduct of your client’s employer
Defendants in construction litigation will often lodge defenses focused on the conduct of the injured worker’s employer, especially where OSHA has determined the employer violated its regulations. Defendants will argue that the employer’s conduct should prevent them from being found to have acted negligently. Plaintiffs’ counsel facing this defense have several options for neutralizing it.
At trial, they could file a motion in limine to keep the violation out of the evidence the jury hears. If that fails, they could argue that the violation was irrelevant, as the violation or citation was issued to a non-party. Plaintiffs’ counsel could also argue that different standards are employed when determining OSHA violations versus determining civil liability, and that the citation and penalty were negotiated between the employer and OSHA, but the employer denied liability and OSHA never proved liability. Plaintiffs’ counsel could further argue that the OSHA violations notwithstanding, the other defendants had standards of care established by various other sources that they did not abide by when engaging in the conduct that injured the plaintiff(s).
Providing clarity in complex litigation
Construction litigation is notoriously complex on account of the fact-intensive nature of the cases and the number of parties involved in both the litigation and resolution efforts. If you are a newer construction litigation plaintiffs’-side practitioner, I hope these four tips above help you increase your chances of securing favorable results for your clients.
Whenever you face difficult strategic or tactical questions in your construction litigation cases, I recommend you consider reaching out to seasoned practitioners in the construction litigation plaintiffs’-side bar. The bar is tight-knit and full of practitioners who, like you, were at one time new to the practice and had more questions than answers. In my experience, they are eager to guide newer practitioners through the kinds of strategic and tactical questions that could make or break a successful recovery for an injured construction worker.
Reprinted with permission from the April 30, 2024, edition of the The Legal Intelligencer © 2024 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-257-3382 or reprints@alm.com.
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