Fatalities caused by falls continue to be a leading cause of death for construction employees. Lack of proper fall protection remains the most frequently cited violation by OSHA. In response to the number of fall related injuries and fatalities, OSHA launched its National Safety Stand-Down Campaign to Prevent Falls in Construction. The annual event strives to raise fall hazard awareness. The 4th annual National Fall Prevention Stand-Down will take place May 8-12, 2017.
The Senate recently voted to nullify an Obama-era OSHA safety regulation – the so-called “Volks rule” – which extends the time period for OSHA to cite employers for failing to report workplace injuries and illnesses.
Recently, while I was walking in Center City Philadelphia on my way to a deposition, I took notice of the many construction projects occurring in various sites throughout my journey. Visit any major city and you are bound to see a skyscraper being constructed. Although construction sites can provide workers with good jobs, there are also many dangerous aspects of those jobs.
For example, in a recent case, a 20-year old construction worker was on a scaffold in New York installing metal siding on a building. The worker was asked to go to the roof of the building to provide assistance for a different job. The worker went to the roof wearing his safety harness, but was unable to find a place to tie off. While he was on the roof, he fell about 20 feet to the ground. The construction worker suffered many severe injuries, including a head injury, spinal fractures, rib fractures, and internal injuries including a renal hematoma, a lung contusion, a lacerated spleen, and cervical and lumbar disk herniations.
Even worse, as a result of his head injury the worker developed degeneration of the brain tissue, which is a condition called encephalomalacia. This resulted in memory loss, motor problems, and impaired thought-processing and other cognitive functions. He is permanently disabled as a result of his injuries from the accident.
Stark & Stark Shareholders Bruce H. Stern, Esq. and Michael G. Donahue, Esq. filed an Amicus Brief for the New Jersey Association for Justice (NJAJ), arguing that a national building developer and its general contractor should be held responsible for the catastrophic injuries suffered by an employee on the work site.
On May 10, 2011, the plaintiff was working as a laborer on a construction site known as Richwood Crossing in Glassboro, New Jersey. The plaintiff was employed by the framing subcontractor. The plaintiff was working on the ground in front of a townhouse under construction, while several framers were working on the roof. Multiple pieces of plywood fell off the roof, striking the plaintiff on his head and upper torso. As a result, he was rendered a paraplegic.
The plaintiff’s attorneys sued and alleged that the developer, Beazer, and general contractor, Probuild Northeast, LLC and Probuild Company, violated OSHA regulations and industry standards resulting in plaintiff’s injuries.
The defendants individually moved for summary judgment to have the complaint dismissed, arguing they had no responsibility for insuring safety on the job site. The trial court agreed and dismissed plaintiff’s complaint, leaving him with no legal remedy against the developer and the general contractor.
Plaintiff’s lawyers filed an appeal, which is presently before the New Jersey Superior Court Appellate Division.
Stark & Stark attorneys were asked by the New Jersey Association for Justice to file an Amicus (“friend of the court”) brief, asserting that the building developer and its general contractor should be held legally responsible. Stark & Stark attorneys Bruce H. Stern, Esq. and Michael G. Donahue, Esq. argued in their brief that a developer and its general contractor had a non-delegable duty and responsibility to insure safety on the job site and compliance with OSHA safety regulations.
The attorneys relied on their recent victory before the New Jersey Supreme Court in Fernandas v. Dar. In that case, the New Jersey Supreme Court ruled that a general contractor had a non-delegable duty to insure safety on the work site and violations of OSHA regulations were evidence of negligence, precluding a trial court from dismissing a claim and insuring that the matter be heard before a jury.
A recent article in Insurance Journal lists the top 10 causes of workplace injuries based on 2012 Liberty Mutual claims data for injuries lasting six or more days.
The ranking is based on total workers’ compensation costs but it is interesting to note the leading causes of injuries in this study. If I were to rank the types of injuries/causes of injuries I see most frequently in my own practice, I would have a very similar list. Particularly in the Winter months we see an increase in slip and fall injuries and motor vehicle accidents, but we also see a consistent number of cases where the injuries are based on overexertion. The article points out that the leading cause of injury on the list, overexertion, was typically related to lifting, pushing, pulling, holding, carrying or throwing. Other exertions, which came in at number five, includes injuries due to bending, crawling, reaching, twisting, climbing, stepping, kneeling, sitting, standing or walking.
10 Leading Causes of Workplace Injuries in 2012:
- Falls on same level
- Struck by object or equipment
- Falls to lower level
- Other exertions or bodily reactions
- Roadway incidents involving motorized land vehicle
- Slip or trip without fall
- Caught in/compressed by equipment or objects
- Repetitive motions involving micro-tasks
- Struck against object or equipment
At Stark & Stark, our Workers’ Compensation lawyers dedicate their practice to representing injured workers. If you or someone you know is hurt at work, please call our experienced attorneys today for a complimentary, no obligation consultation.
Construction workers on a job site have no meaningful choice when told by their employers to perform an assigned task. When a construction worker is injured, while performing his assigned task, should the defense of comparative negligence be a defense in a lawsuit filed by the injured employee against the general contractor? That is the issue that was argued before the New Jersey Supreme Court last month.
I had the honor and privilege of arguing the case on behalf of the New Jersey Association for Justice as amicus counsel (friend of the court).
Fernandes v. Dar is a personal injury case in which the plaintiff, a plumber, was injured when the sanitary sewer line trench he was excavating collapsed around him. The trial court refused to submit the issue of the plaintiff’s own comparative negligence to the jury, finding that the defendant failed to introduce any evidence of culpable conduct on behalf of the plaintiff. The jury returned a verdict on behalf of the plaintiff.
Defendant took an appeal asserting that the trial court committed error when it refused to charge the jury on plaintiff’s comparative negligence and determined, as a matter of law that the plaintiff was not at all at fault. On appeal, the Appellate Division affirmed, finding that plaintiff did not voluntarily an unreasonably encounter a known risk, a standard which is higher than ordinary negligence.
The New Jersey Supreme Court granted certification to determine the issue as to what standard should apply in evaluating an injured construction worker’s conduct. I was asked, on behalf of the New Jersey Association for Justice, to file a brief and argue on behalf of its members and future New Jersey construction workers who might be injured on the work site. It was NJAJ’s position that a construction worker, injured on the job while performing his assigned tasks, had no meaningful choice, i.e., an employee either had to do what he was told to do or faced being fired. It was NJAJ’s position that in such circumstances, as a matter of law, a construction worker injured on his job, performing his assigned tasks, could not be comparatively negligent.
We all look forward to the Supreme Court’s ultimate decision in the case.
Personal injury attorneys are advocates for people who have been injured in an accident, whether it is a slip and fall, trip and fall, work related, car, motorcycle or recreational accident. Our job is to represent the rights of the injured party, not the insurance company. So, why do personal injury attorneys have such a bad reputation in our society and why are we so often seen as greedy ambulance chasers? Whether the reason for the negative image is television, commercials or the few bad apples out there, the stereotypes are damaging to our legal system and society. The legal system is what people should turn to in their time of need. It is their last avenue for appeal and redress when private parties and the government will not act responsible for their negligent acts. And truth be told‚ the goal of the vast majority of personal injury lawyers out there is to help people in their time of need.
Injury attorneys not only help people‚ but the most important consequence of their work is a safer environment for all of us, our children, mothers, fathers and friends. Corporations and people have to be concerned about what can happen to them if they do not behave in a reasonable manner. Safety laws and regulations that are currently in place are largely the result of injury attorneys; enacted in response to negligent behavior‚ and these laws provide a standard which intends to keep the public healthy and safe.
There may be a time in your life when you are faced with a situation that will require you to hire a personal injury attorney. You should be represented and protected and not made to feel like just another file in the filing cabinet. You are an individual with your own worries and hopes about your injury claim and we are here to help you.
This is especially true with us at Stark & Stark. We treat all of our clients with the utmost care and we do everything we can to ensure that your rights are represented. If you or your family are ever injured in an accident‚ please contact us for a free consultation.
On a commercial construction site, because most of the trades need electrical power to operate their hand tools, the electrical contractor must provide “temporary” electrical service throughout the site right after the concrete slab is poured.
While both the national and state electrical code (hereinafter “NEC”) require that the electrical contractor be licensed, that does not always mean that the person who holds the license is the same person who will be doing the actual installation of the temporary service on site, so it is difficult for the general contractor to insure that the temporary electrical, when installed, complies with the code.
Right after the concrete slab is poured that forms the “foot print” of the building, the electrical contractor puts up a temporary utility pole in close proximity to where the plans show the entrance will be. Then the electrical contractor runs a high voltage temporary power line into the building to a temporary electrical panel.
When the electrical panel is “powered up,” the municipal code official comes out and inspects the service, which includes the temporary electrical panel.
When the subcontractors come onto the site to do their work, they bring one-hundred long electrical cords and plug them into the electrical panel. The cords come in different colors so that the trades know which cord is theirs, so as not to pull out someone else’s cord and interrupt their work.
Often times, five or more trades are working in the same general area, all using power hand tools using long extension cords all plugged into the panel running across the floor. This situation creates a tripping hazard on site. To prevent this, OSHA requires that the cords be “bundled” together and moved out if the isle way.
Another hazard is created if the cords run too close to sharp objects such as steel beams or plumbing. This hazard is created because the contractor has not read, or does not understand how to read the plans and specifications showing where the steel beams or plumbing are placed. Yet another hazard can also result because the general contractor has not insured that the electrical contractor has not placed the temporary electrical line or panel where it was designed to be according to the plans.
Unfortunately, I have handled several cases wherein a worker has been seriously injured while just walking the site, but trips on a loose electrical cord, and also cases where a worker is holding a piece of metal, or a power tool, in his hands, and inadvertently comes into contact with a “live wire” which either had not been de-energized, or had been erroneously strung too close to the designated aisle way.
In order to protect yourself, make sure that you identify the code inspector’s inspection certificate and make sure you know the color codes for the power line and extension cords, which carry high “wattage” or “voltage” electricity. Be alert to be alive.
In a recent case, Van Dunk v. Reckson Associates Realty Corporation, the Supreme Court of New Jersey found in favor of the employer and against the injured worker who was suing his employer for intentional harm.
The injured worker, Mr. Van Dunk, was employed as a laborer for James Construction. The project was behind schedule because there had been an extreme amount of rain. Mr. Van Dunk was part of a team of employees who were doing excavation and construction of a trench that had to be lined with fabric. The crew experienced problems in stretching the fabric over the trench, and Mr. Van Dunk volunteered to go into the trench and fix the fabric. However Mr. Van Dunk’s supervisor told him not to go into the trench because of the dangerous conditions that existed.
Eventually the supervisor changed his mind and told Mr. Van Dunk to go in to the trench to stretch the fabric, in violation of an OSHA directive not to do so. Immediately after entering the trench Mr. Van Dunk was buried up to his chest in mud and dirt as the trench collapsed on him causing significant injuries. The employer was charged with a willful OSHA violation and fined.
Mr. Van Dunk filed a law suit against his employer on the grounds that the supervisor sending him into the trench was in violation of OSHA and was intentionally wrong, and an exception to the general rule that an employee can’t sue an employer for negligence. At trial, the Judge dismissed the employee’s lawsuit stating that the only action Mr. Van Dunk can take under the law is to file a workers’ compensation case. Mr. Van Dunk appealed and the Appellate Division found that the company intentionally disregarded his safety in an effort to “increase defendant’s profit and productivity,” and allowed the suit to continue. The employer then appealed to the Supreme Court of New Jersey.
The Supreme Court found that while the acts of the employer were reckless, they did not have the requisite intent to harm that is required for an employee to be able to sue an employer for negligence. The Supreme Court also found that the actions of the employer, and the resulting injury to Mr. Van Dunk, were not so far outside the bounds of what could happen in this type of work environment as to make the harm intentional on the part of the employer. The Court confirmed the long standing law that in New Jersey an employee is only able to file a workers’ compensation claim, unless they can prove intentional harm on the part of the employer.
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.