Construction Safety

Pages401-430
Const ruct ionS afet y 401
15.01 int rodu cti on
Construction is one of the most dangerous workplace activities, killing about
1,100 workers in the United States each year and disabling several thousands
more.1
The prevention of construction accidents and the allocation of the respon-
sibility for property damage and bodily injury arising from such accidents are
the subjects of construction safety law. The law is hidden in a dense thicket of
common law forms, obtuse regulations, complicated insurance policies, and
contractual sophistry, the command of which is the stock-in-trade of a large
specialty bar.
This chapter introduces the area of construction safety—more speci cally,
safety of workers—and the roles of the principal players. To structure the dis-
cussion, this chapter is divided into three general subdivisions that re ect the
1. Bureau of Labor Statistics, Census of Fatal Occupational Injuries (CFOI)—Current and
Revised Data (2005), available at http://www.bls.gov/news.release/pdf/cfoi.pdf (last visited
June 14, 2007).
15
Construction Safety
WIL LIAM R. AL LENSWORTH
C H A P T E R
401
402 CO N S T RU C T I O N L A W
most common legal issues arising in construction safety: accident prevention,
compensation, and the allocation of responsibility for accidents through tort
liability, insurance, or by contract.2
15.02 Accident Pr eve ntio n
The prospect of tort liability for construction accidents undoubtedly encourages
accident prevention programs, but this section addresses the afrmative duty
of accident prevention as either a governmental or contractual requirement.
A. State Legislatio n
While the prevention of construction accidents has long been a subject of gov-
ernmental interest, American states have enacted safety legislation only since
the late 19th century. States legislating safety primarily were those with union-
ized workforces, with legislation often piecemeal and in response to notorious
accidents, or series of accidents.3 Most of these statutes required the general
contractor to provide for workplace safety, or for a particular aspect of it, such
as protection against falls. Owners either were assumed to have no responsibil-
ity or specically were exculpated from responsibility.
Architects’ and engineers’ licensing boards have not been heavily involved
in accident prevention—aside from a few well-publicized license suspensions
arising from design or contract administration errors on notorious projects.4
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 particular, trench
safety and highway construction.5
B. Occup ational Safety a nd Heal th Act
In the 1960s, Congress took up the cause of accident prevention, and Presi-
dent Nixon signed into law the Occupational Safety and Health Act (OSHA) in
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. See, e.g., Duncan v. Missouri Bd. for Architects, Professional Eng’rs and Land Surveyors,
744 S.W.2d 524 (Mo. Ct. App. 1988).
5. See, e.g., Texas Uniform General Conditions in State Construction Contracts, TEX. GOVT CODE
ANN. § 2166.301 (Vernon 2000).

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