We try our best to be safe, but accidents happen. It’s been shown that most accidents result from unsafe acts, not necessarily unsafe conditions. We hold safety orientations for new hires. We do OSHA training and hold tool box talks. We write Site Specific Safety Plans and follow up on them.
But still, accidents happen.
Construction injury lawsuits are usually nasty affairs. They frequently involve multiple parties and can require years of expensive litigation.
It’s important for you, the employer, to frame your defense from the start, according to Thomas J. Pontikis and James H. Whalen, attorneys with the Chicago law firm of Lipe Lyons Murphy Nahrstadt & Pontikis Ltd. The plaintiff’s attorneys will scrutinize everything to frame the story their way, say Pontikis and Whalen. When an accident happens, you should mobilize to preserve the scene. Investigate to find out what happened. Appoint a “point man” to direct the investigation. Photograph the scene and even hire a consultant to help with the investigation.
Identify your witnesses and conduct interviews with them, say Pontikis and Whalen. Prepare for potential interviews with OSHA officials. Document the scene as best you can. Previous columns on these pages of Grading & Excavation Contractor have addressed accident investigations.
You should notify your insurance broker and look for all applicable insurance. Look up the applicable OSHA standards. Gather the relevant documents, such as contracts, equipment leases, purchase orders, and change orders.
If a lawsuit has been filed against you, don’t panic. Rely on your strengths: well-prepared witnesses, favorable documents, and photos. Make sure you have good three-way coordination with your point man, your defense counsel, and your insurance company. Offense is not always a reliable option. It doesn’t always work to say the plaintiff was not careful; it was someone else’s fault, say Pontikis and Whalen.
Much of the evidence that the plaintiff will offer against you is in your office right now. As a general rule, “the best indicator of whether a contractor has retained control over the subcontractor’s work is the parties’ contract, if one exists,” held an Illinois court in Joyce v. Mastri, 2007. The American Institute of Architects Document A201 says the following: “The Contractor shall supervise and direct the Work, using the Contractor’s best skill and attention. The Contractor shall be solely responsible for and have control over construction means, methods, techniques, sequences, and procedures and for coordinating all portions of the Work under the Contract, unless contract documents give other instructions concerning these matters.”
Now is the time to begin planning your defense in case of an accident. Draft your documents well; prepare clear contracts. Document your safety training. Make sure that each worker signs off on safety training and the material presented at tool box talks. Spell out the responsibilities of workers and supervisors regarding the use of equipment, rigging, fall protection, and responsibilities for particular work.
Although contracts are important to courts in Illinois and elsewhere, a court can find retained control despite the contract language if the parties’ course of conduct demonstrates such control. Ordinarily, a party is not responsible for the negligent conduct of another. Under a theory of retained control where a party controls certain aspects of the work, it can be held liable for the actions of another. What really happened on the job site?
Before the job begins, the employer should establish who has the authority to stop work if unsafe conditions or acts are taking place. Some contractors even give all workers the authority to stop work if something unsafe is happening. If you as an employer do this, document it. Give someone, or even everyone, the authority to stop work if the proper safety equipment is not being used. Require that all subcontractors follow the general contractor’s safety guidelines and measures when performing their own work.
At the job site, have a clear hierarchy—a chain of command. Make everyone responsible for safety, not just the Safety Director. Subcontractors should take an active role in safety; they should prepare job-specific safety rules and plans. It’s best to document all safety measures, meetings, and plans.
Be proactive in your contracts. Have contracts that require that your company be named an additional insured. Under Illinois law, with a Briseno clause there is no right of contribution between parties that provide insurance to another. You should use contracts that call for a Kotecki waiver which prevents any subcontractor from limiting its liability to your company.
