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Developer and Contractor that Violated Work Safety Rules Paid $625,000 to Make Up for Harms and Losses to Injured Carpenter

This is a construction injury OSHA safety rules violation case wherein plaintiff carpenter sustained serious injuries when he was caused to fall approximately 24 feet from a ladder on a dangerous, OSHA non-compliant worksite.  The project at issue was the construction of a residential community in Mendham, New Jersey called, “Governor Estates at Mendham.”  The general contractor on the project was the K. Hovnanian defendants (“Hovnanian”).  Hovnanian hired defendant Quality Framing Management of NJ, Inc. (“Quality”) as the framing subcontractor.  Quality in turn hired plaintiff’s employer, Real Construction, to do the actual framing and plywood sheathing installation work.

On January 8, 2008, the day of the incident, plaintiff carpenter was directed to install plywood sheathing on this project standing on a ladder.  The ground was muddy and unstable.  He was directed to carry the wood up the ladder on his head, install the sheet and measure for the next one.  As he was doing this the ladder shifted and he was caused to fall approximately 24 feet  suffering a broken foot.

OSHA Safety Rule Violations

OSHA and industry safety authorities prohibit requiring workers to use ladders as work platforms.  Workers must maintain three-point contact on the ladders.  They can not do so if they are using them to install plywood sheathing.  Ladders are for access, not work platforms.  A former OSHA official that reviewed the case wrote that for some 20 years before plaintiff’s incident, Hovnanian and Quality had a policy of requiring workers to use ladders to install sheathing.  Quality Framing had been fined thousands of dollars in the past for these types of violations, a fact which its owner denied in his deposition, yet he testified to in a previous deposition in another case.

The General and Interim Sub-Contractors have a Joint, Non-Delegable Duty to Ensure All Sub-Contractors Comply with OSHA

Under the law, the general contractor and each tier of subcontractor has a joint, non-delegable duty to maintain a safe workplace that includes “ensur[ing] ‘prospective and continuing compliance’ with the legislatively imposed non-delegable obligation to all employees on the job site, without regard to contractual or employer obligations.” Alloway v. Bradlees Inc., 157 N.J. 221, 237-38 (1999), citing, Kane v. Hartz Mountain, 278 N.J.Super. 129, 142-43 (App. Div. 1994) As such the general contractor bears responsibility for all OSHA violations on the jobsite. Meder v. Resorts International, 240 N.J.Super. 470, 473-77 (App. Div. 1989), cert. den. 121 N.J. 608; Kane, 278 N.J.Super. at 142-43; Dawson v. Bunker Hill Plaza Assocs., 289 N.J.Super. 309, 320-21 (App.Div.1996). OSHA is supposed to be enforced from the top down.   The interim sub-contractor who hired plaintiff’s employer, Quality Framing, also bears significant responsibility for failing to see to it that OSHA was enforced with respect to its sub-contractors on the site.  See, e.g., Carvalho v. Toll Bros., 143 N.J. 565 (1996) (contractor with control over sub-contractor responsible for job site OSHA violations) Furthermore, Quality Framing was contractually bound to enforce OSHA as it relates to its sub-contractors under its contract with Hovnanian.

Expert review found that Quality Construction Management violated their own safety and health program by failing to remove or guard against the hazard as required by OSHA, failing to provide personal protective equipment, failing to train workers in safe work procedures and failing to manage the safe coordination of the work. Although he attended the ten hour OSHA safety course Quality Construction Management’s owner testified in his deposition that he did not know how high the work would have to be before the company used a forklift truck or cherry picker.  Ladder safety is a topic covered in the OSHA course.

Plaintiff’s liability expert explains that the “requirement to not utilize ladders as work platforms [is covered in the OSHA course] , including to not carry tools or materials in your hand while ascending and descending a ladder…OSHA standards do not permit workers to climb ladders with plywood in their hands to any height at all.”  It was demonstrated that the carpenter was exposed to a fall hazard as a result of poor safety planning on the part of Quality Framing.  It is very dangerous to require carpenters to utilize ladders while performing the following tasks:

  1. Climb ladders with plywood sheathing on their heads.
  2. Take the plywood from their head and place it against the two by four studs on the outside wall.
  3. Hold the plywood sheathing against the two by four studs with one hand and use a nail gun with their other hand to secure it.
  4. Make measurements to determine the next size plywood section to cut.

Presented with the evidence the former OSHA official explains, “it is cheaper to have workers climb ladders with plywood sheets on their head than it is to use proper equipment and comply with OSHA.  [T]here was a deliberate decision made by Hovnanian and Quality to permit the work to be done from ladders…[an] unsafe practice that has been permitted… for many years.  The decision was made long before work began at [the] site.  That was the customary practice of these two companies for many years….they consciously decided to put greater priority  on money rather than human lives.”  Moreover, other carpenters on the site who were witnesses testified that it was a customary practice at the job site to install plywood sheathing in the manner described herein.

Quality Construction Management has been cited for many  fall hazards and fined thousands of dollars the most recent of which occurred on June 25, 2008.  The company was cited by OSHA for exposure to fall hazards, failure to train workers who work at elevation and failure to require workers to train on  ladder safety.  The company received seven violations and paid a fine of $5,850.00 to OSHA.

Allegations Included that K. Hovnanian and Quality Framing’s Violation of Basic Worker Safety Rules in Order to Maximize Profits Resulted in Plaintiff’s Injury

It was alleged that K. Hovnanian and Quality Framing violated the principles and practices of construction safety  management because they failed to ensure that the work of installing plywood sheathing on the sides of buildings was done safely and in compliance with OSHA and industry standards.  Hovnanian violated their own safety and health program, OSHA regulations and they permitted Quality to violate its contract with Hovnanian.

The community manager for K. Hovnanian was responsible for overseeing various construction sites.  He testified that he witnessed workers carrying plywood in their hands while ascending and descending ladders.  He should have recognized this as an OSHA violation, having taken the ten hour OSHA course and testifying that he understood the concept of  a three point contact.

Under, the general negligence principles discussed in Alloway, liability can also attach irrespective of the formal labels of the parties and instead by consideration of several factors- the forseeability of harm, the relationship between the parties and the opportunity and capacity to take corrective action.  Alloway at 230-233; citing Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 439 (1993).

The incident was clearly foreseeable and the attendant risk was severe.  It is clearly foreseeable that the subcontractor would be using ladders during the course of installing plywood sheathing and that the height of the buildings may be such to require certain types of safety equipment most notable a forklift or cherry picker to avoid the potential for accident or injury.  The relationship of the parties was such that  Quality Framing had the “opportunity and capacity.. to  have avoided the risk of harm.” Alloway at 231.  Specifically, Quality Framing had significant control over its subcontractors such that it is further appropriate to hold it liable under the Alloway principles irrespective of formal labels.

Combining and weighing these factors– the forseeability of the nature and severity of the risk of injury based on the defendant’s actual knowledge of dangerous conditions, the relationship of the parties and the connection between the defendants’s legal responsibility for work progress and safety concerns and the defendants’s ability to take corrective measures to rectify the dangerous conditions-considerations of fairness and sound public policy impel the recognition of a duty on Quality Framing and K. Hovnanian to meet its obligations under the law.   It had a duty to avoid the risk of injury to employees of its subcontractors.

The carpenter suffered serious injuries because of these safety failures.  He incurred substantial medical bills and lost significant earnings.  Defendants paid a total of $625,000 to make up for these needless losses.  He was represented by Gerald H. Clark, Esquire, the Principal of the New Jersey personal injury law firm, the Clark Law Firm, PC.  Sarah K. Delahant, Esquire co-counseled the case with Mr. Clark.  Lawyers at the Clark Law Firm, PC specialize in New Jersey personal injury and accident cases.  You can contact the Clark Law Firm, PC at 877-841-8855 or at ClarkLawNJ.com to speak with a qualified NJ accident law firm, and NJ accident attorneys / lawyers.

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