Personal Injury Law Journal

Mention the words “construction worker” to most people and the picture that comes to mind is a trim, muscular male wearing jeans and work boots with a hard hat and a toll belt tied to his waist. In the case of ironworkers, masons and roofers, however, their ensembles would not be complete without some form of leather harness having metal clips to attach to a lanyard or some other form of lifeline.

This equipment is commonly referred to in the business as “fall protection.” OSHA defines personal fall arrest systems as a system used to arrest an employee from a fall from a working level above grade. A personal fall arrest system consists of an anchorage, connectors, a body harness and may include a lanyard, deceleration device, lifeline or suitable combination of these. The use of body belt for fall arrests is prohibited under OSHA.

Section 1926.502 of OSHA specifies the types of and specifications for OSHA approved fall protection equipment.

For ironworking, and most other types of construction activities performed above grade, 15 feet is the height above which fall protection is mandated. The only exception to this is when the worker is working off of a properly designed, constructed and maintained scaffolding.

Statistics prepared by the National Safety Council, Association of General Contractors of America and various trade organizations place the number of serious injuries and deaths on construction sites due to falls at over 40,000 annually.

It is an unfortunate reality that although many more injuries and deaths are caused as a result of a workers’ failure to use fall protection than from not wearing a hard hat, safety managers on construction sites, while scrupulously enforcing the “hard hat” requirement, oftentimes overlook the fact that the worker is not wearing a safety harness. Without a harness, it is impossible to “tie off” to a beam or other type of support structure with the lanyard or safety line, which is the only way to prevent falls.

In my experience in handling construction accident litigation involving falls,  even though it is the responsibility of the general contractor to enforce fall protection rules, if one of the subs falls and is injured due to a scaffolding collapse, the general contractor defends the lawsuit by blaming the sub for not utilizing fall protection, even though the lack of fall protection did not case the person to fall or when the fall was less than 15 feet.

Blaming the worker is oftentimes persuasive to the jury because juries have a bias against the trial lawyers and injured plaintiffs and are all too willing to blame the victim rather than the general contractor who has completely failed to enforce OSHA requirements on his site.

The lesson for the construction worker here is that just like the police officer has learned to wear his bulletproof vest when getting dressed for work in the morning, a construction worker should always slip on his harness at the same time he straps on his tool belt before leaving for work in the morning.

If you have been injured in a construction accident and would like to meet with me, free of charge, to discuss your case, contact me today to set up a free initial consultation here in my firm's Lawrenceville, New Jersey office.

How many times have we seen on the news, footage of huge buildings being completely demolished without any damage to other buildings nearby? So precise is the planning that goes into demolition work that it is often scheduled at the same time new construction is taking place at the same work site.

In addition to the obvious hazards associated with demolition, like being hit by flying objects, there are associated occupational hazards, such as hearing loss, eye injuries, and injuries caused by breathing in dust and gasses.

In the United States, the Occupational Safety and Health Administration, and The National Safety Council, have promulgated strict rules governing demolition work. Any time demolition is required, while at the same time, other trades are onsite working, the demolition contractor must file a written safety plan with a code official, and furnish a copy to the general contractor before they start work.

Unfortunately, in my experience, I have seen workers injured and/or killed, either because the contractor failed to file a demolition plan and follow it, or because the other contractors do not read it before starting their work.

Recently, I represented the estate of a young HVAC contractor who was killed while installing air conditioning equipment on the roof of an old movie theatre that was being renovated in Jersey City. Roofing involved demolition, as such, the contractor is required to prepare and file a work schedule with the general contractor and building code official. Due to a lack of experience and training, however, in my case, the contractor never prepared the required plan.

The roofer started work at 6:00 AM, in August, and removed the roof trusses. At the time the other men were taking their morning break, the HVAC contractor arrived onsite and hoisted a large compressor onto the roof with a mobile crane.

My client was standing on the roof waiting for the compressor, but neither his boss, nor the general contractor knew that the roofing contractor had removed the roof trusses. So when the compressor landed on the roof, the roof membrane gave way and the unit and my client crashed through the roof and fell to his death.

The lesson to be learned is that any time a contractor removes anything, even as small as a step or railing, he must understand that this is demolition, and should follow OSHA rules, which can save your life.

With the exception of an experienced, OSHA certified backhoe operator, most construction workers don’t realize how dangerous it is to climb down into a trench, even as shallow as three or four feet. OSHA requires the side walls of a trench of a depth of four feet be supported with a properly constructed plywood wall, equal to the height of the trench.

In addition to requiring wooden supports, OSHA instructs everyone working in the trench to notify the backhoe operator there are people in the trench. OSHA cautions workers not to come anywhere near the bucket of the backhoe while in operation. Never approach the bucket of the backhoe unless the machine is turned off. The hazards associated with trenching include trench collapse and being struck by the swinging bucket.  

During my 36 years of representing workers injured in construction accidents, the saddest case I have handled involved a trench collapse accident. In that case, an 18 year old apprentice landscaper was working part time for a small residential home builder. The house construction was nearly finished; all plumbing was installed, including the sewer line that ran from the basement to the street. The landscaping contractor hired by the GC to lay seed and plant shrubbery had rented a small Bobcat excavator, and was transporting trees in the bucket in front of the house that was being inspected.

Inside, the GC’s site superintendent and the building inspector were conducting the final walk through when they discovered the sewer line was completely blocked. In an effort to clear the sewer line and complete the inspection, the site superintendent approached the boy and ordered him to immediately dig up the sewer line. The boy had only operated the backhoe a few times previously and had never dug a deep trench. He knew nothing of the OSHA regulations governing trenching. He was unaware of the hazards caused by trenching loosely compacted dirt which the early spring rains had turned into thick mud and clay. This type of soil is very unstable.

After making a few passes with the bucket, the boy hit the top of the sewer line. At that point, the boy got off the machine, grabbed a shovel, and jumped into the trench and removed the remaining dirt from around the pipe. The trench was only about four feet deep, and the side walls appeared to be firm.  

Not knowing the hazardous situation he had placed himself in, the boy got down on his hands and knees and, by hand, brushed away the remaining dirt. In this crouched position, the boy’s head was now lower than the top of the trench wall.     Tragically, while in this crouched position, the trench walls suddenly caved in, and with the weight of the mud on top of him, the boy was pushed face down in the trench. Like being caught in an avalanche, although only covered with less than a foot of dirt, the boy could not get his arms under him to push his head up to breathe.

According to the pathologist’s report, it took about three or four minutes for the boy to suffocate. Of course, the general contractor settled the lawsuit immediately, but the money gave little solace to the boy’s devastated parents.

This blog is part one of a two part series addressing the injuries caused by power lift trucks in the workplace and how employers can prevent them.

Statistics published by the National Safety Council and OSHA show that three times as many workers are seriously injured or killed in lift truck related accidents than in construction site accidents in the United States annually since 2007. In fact, the risk of being injured by a forklift many years ago prompted the creation of an entire section in OSHA devoted to warehousing/material handling and storage operations in the Occupational Safety and Health Act.  

Because industrial lift trucks travel at about the same speed as a golf cart, layman think that operating these noise-free propane or hydraulic powered vehicles do not pose a serious risk to the operator or to a pedestrian walking in a powered lift truck or walking in a plant, loading dock, or warehouse.

The danger, however, is serious and two-fold in nature. First, on a construction site or in a warehouse, there are usually no clearly defined aisle ways or traffic control devices such as stop signs or crosswalks painted on the floor. Second, the forklift’s load is positioned directly in front of the operator’s line of sight, making it extremely difficult to see objects or people directly in front of the vehicle. The position of the load on the forks often necessitates the truck being operated in reverse over long distances. Such maneuvering places an operator in an uncomfortable position in relation to the driver seat, as it puts significant physical stress on the operator’s neck and upper torso. Ergonomic studies demonstrate looking backward over the shoulder is not a position which is easy to maintain for any period of time. This will often times result in the operator using only the rearview mirror to guide his way.

Another problem in operating a forklift in a warehouse is when there is large bulky freight, (usually secured on pallets) stacked on top of each other and stored near and sometimes within the aisle way, abutting pedestrian walkways. In a crowded, noisy plant, the workers cannot hear or see the silent forklift before being struck. Being struck by a two ton forklift, even one which is traveling at 10-15 MPH can result in serious bodily injuries.  

The Federal government, in Title 29 of the Code of Federal Regulations (CFR) has enacted strict requirements for the training and safe operation of powered lift truck drivers, as well as instituting traffic control safety regulations such as “the rules of the road,” and vehicular traffic right-of-ways in plants, warehouses, and on construction sites to prevent accidents.

The following is the first of a two-part series, which will focus on the development and use of the nail gun in the residential construction industry.  The second part will focus on litigation against nail gun manufacturers, for the serious injuries and deaths it has caused over the last 30 years.

On a present day construction site, the use of power hand tools have enabled workers to greatly increase productivity by  reducing physical stress on muscles and joints caused by repetitive hammering and sawing. In the home building business, the “nail gun,” has largely replaced the handheld hammer, in stud work, roofing and decking.  Starting in the 1950's, the Bostitch Company (then a division of Textron Industrial) took a small German made, handheld, pneumatic stapler used by furniture manufacturers to fasten small brass buttons decorations on sofas and chairs, and redesigned it to shoot nails into studs in framing work.

A nail gun, using 100 psi of compressed air, can drive a three inch long nail through two 2x4s in a fraction of a second. Bostitch, intentionally designed its pneumatic nailer to look like and work like a machine gun by adding a device called a “contact trip” at the end of the barrel.

In the 60's, Bostitch introduced its most powerful model nailer, the N16. Its intent was to associate the N16 nailer with the M16 semi-automatic rifle used in the military. The N16 nailer, as designed was intended to shoot one, three inch nail into a stud when framing. However, the addition of the contact trip allowed multiple nails to be continuously fired when the trip mechanism remained in contact with the wood.

Not only is shooting multiple three inch long nails unnecessary when framing out studs, it is also extremely dangerous.  Most carpenters think it’s necessary to pull the trigger to discharge another nail, but the contact trip allows continuous firing. Unintended actuation of the contact trip creates a cluster of nails, until a nail ricochets back toward the operator, striking him or a co-worker.

In 1973, in an attempt to eliminate this hazard, a Bostitch design engineer designed and patented the “sequential trip” work actuating mechanism.  The sequential trip was designed specifically to replace the contact trip, and eliminate, completely, the discharge of multiple unexpected nails. The addition of the sequential trip caused Bostitch to lose its entire market share of the sale of Bostitch nails.  As a result, their sales director banned the use of the sequential trip within six months, and its sale of nails greatly increased.

The real reason, nail gun manufacturers use the contact trip is because they  make their real money selling nails.  Nail guns, like handheld hammers, never wear out. Guns can last 20 years.

It is a little known fact that, all nail gun manufacturers in the United States belong to a trade organization named “ISANTA,” the International Staple and Nail Trade Association.  The nail gun is the vehicle through which profits are generated.