Construction Safety

• Author: Carol J. Patterson - Ross J. Altman - Stephen A. Hess - Allen Overcash
• Pages: 393-424

13.01 IntroductIon

The construction workplace is one of the most dangerous in the United States,

killing thousands of workers each year and disabling many thousands more.1

The U.S. Bureau of Labor Statistics has cited its “fatal four” leading causes of

construction deaths as (1) falls, (2) struck by object, (3) electrocutions, and

(4) caught-in/between. The number of on-the-job fatalities for American con-

struction workers reached 5,190 in 2016—effectively 14 deaths per day; and these

only represent deaths occurring within the workforce, not the general public.

The prevention of construction accidents, and the allocation of responsibil-

ity for property damage and bodily injury arising from such accidents, are the

subjects of construction safety law. The law hides in a dense thicket of com-

mon law forms, varied and sometimes obtuse regulations, state and federal

statutory frameworks, complicated insurance policies, and contractual soph-

istry, the command of which is the stock-in-trade of a large specialty bar.

1. Bureau of Labor Statistics, Census of Fatal Occupational Injuries (CFOI)—Current and

Revised Data (2016), available at http://www.bls.gov/news.release/pdf/cfoi.pdf (last visited Mar.

12, 2018).

13

Construction Safety

WILLIAM R. ALLENSWORTH AND MATTHEW C. RYAN

CHAPTER

393

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CONSTRUCTION LAW

394

This chapter introduces the area of construction safety—more specically,

the safety of workers (and to a lesser extent, that of the general public)—and

the roles of the industry’s principal players. To structure the discussion, this

chapter is divided into three general subdivisions that reect the most com-

mon legal issues arising in construction safety: accident prevention; compen-

sation; and the allocation of responsibility for accidents through tort liability,

insurance, statutes, or contract.2

13.02 accIdent preventIon

The prospect of tort liability for construction accidents encourages employ-

ers to implement accident prevention programs, but this section addresses the

afrmative duty of accident prevention as either a governmental or contractual

requirement.

A. State Legislation

While the prevention of construction accidents has long been a subject of gov-

ernmental interest, states in the U.S. have enacted safety legislation only since

the late 19th century. States legislating safety primarily were those with union-

ized workforces, and with legislation often developed in piecemeal fashion—

frequently in response to notorious accidents, or a series of accidents.3 Most

of these statutes have required general contractors to provide for workplace

safety, or for a particular aspect of it, such as protection against falls.4 Own-

ers traditionally were assumed to have no responsibility, or specically were

exculpated from it.

Traditionally, architects’ and engineers’ licensing boards have not been

heavily involved in accident prevention, and, instead, have focused on indi-

vidual registrants’ duties to protect the public’s health, safety, and welfare.5

This has been the lens through which these agencies have looked when eval-

2. For more information on the topic of safety in construction law, see

PhiliP l. Bruner &

Patrick J. O’cOnnOr, Jr., Bruner & O’cOnnOr On cOnstructiOn law

§§ 5:1, 7:60, 13:14–13:15, 17:56

(West Group 2002) [hereinafter

Bruner & O’cOnnOr]

.

3. For a well-researched history of this legislation, see

Marc M. schneier, cOnstructiOn accident

law: a cOMPrehensiVe Guide tO leGal liaBility and insurance claiMs

48–52 (Forum 1999) [hereinafter

cOnstructiOn accident law

].

4. The U.S. Bureau of Labor Statistics has cited falls as the runaway leader of construction

deaths, capturing 38.7 percent of the total fatalities in 2016. See supra note 1.

5. The Texas Occupations Code, for example, includes separate chapters governing the prac-

tices of architecture and engineering, but both emphasize the state’s interest in protecting the

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Construction Safety 395

uating design professionals’ conduct on projects involving construction acci-

dents, most notably through a few well-publicized license suspensions or

revocations, due to design or contract administration errors on prominent proj-

ects.6 Although state licensing boards may require that a design professional

produce a safe design, of more signicance are state statutes and regulations

requiring engineered safety systems during construction—including, in partic-

ular, trench safety and highway construction.7

B. Occupational Safety and Health Act

In the 1960s, Congress took up the cause of accident prevention, and in the

1970s, then-President Nixon signed into law the Occupational Safety and

Health Act (OSHA).8 The OSHA statute created a safety administration agency

and charged the Secretary of Labor with enacting regulations to “assure safe

and healthful working conditions for working men and women,” and for

enforcing those regulations.9 A number of states adopted OSHA, or portions

thereof, as the standards replacing local workplace safety statutes.10

These regulations cover virtually every aspect of construction workplace

safety in mind-numbing detail, requiring employers to institute safety programs

and to ensure their implementation. OSHA, however, is deliberately imprecise

in its denition of “employer”; because “employer” status is required for a

party to be subject to OSHA, such intentional ambiguity arguably broadens

the potential applicability of the act. Over time, this requirement also has led

industry participants to create “independent contractor” relationships with

individuals, in an effort to (1) escape the effects of the OSHA statute and

related regulatory consequences, and (2) build barriers against legal respon-

sibilities for control. The OSHA agency takes the position that the “employer”

term includes not only the subcontractors whose employees are workers but

also the prime contractors who control the subcontractors, thereby making

public’s health, safety, and welfare.

teX. Occ. cOde

§ 1001.004(b)(1) (engineers);

teX. Occ. cOde

§ 1051.0015(1) (architects).

6. See, e.g., Duncan v. Missouri Bd. for Architects, Professional Eng’rs and Land Surveyors,

744 S.W.2d 524 (Mo. Ct. App. 1988).

7. See, e.g., Texas Uniform General Conditions in State Construction Contracts,

teX. GOV’t

cOde ann

. § 2166.301 (Vernon 2000).

8. 29 U.S.C. §§ 651–678 (1994).

9. From the preamble to OSHA, 29 U.S.C 651.

10. If a state, with approval from the Secretary of Labor, adopts a comprehensive statutory

safety scheme equivalent to OSHA, the enforcement of OSHA is preempted in that state. 29 U.S.C.

§ 667.

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