Construction Safety

• Author: William R. Allensworth
• Pages: 401-430

Const ruct ion S 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. GOV’T CODE

ANN. § 2166.301 (Vernon 2000).