Carpenter Who Suffered Severe Hand Lacerations on Jobsite that Ignored Worker Safety Rules Settles for $550,000
This is a construction injury OSHA safety rules violation case wherein the plaintiff carpenter sustained serious and permanent injuries. On or about June 25, 2009, plaintiff carpenter was working on the construction of a new home in Beach Haven, New Jersey. While performing his assigned tasks using an unguarded table saw provided to him by defendants contractors, plaintiff carpenter sustained severe and permanent injuries to his hand.
Defendant ABC Construction was the general contractor of the project. Defendant DEF Construction was a managing sub-contractor and utilized as a layered management arm of ABC Construction.
STATEMENT OF MATERIAL FACTS
This is a safety rules violation construction project personal injury case. The project was the construction of multi-million dollar, 4200 square foot vacation property called “The Great American Beach House.” It was located in Beach Haven, New Jersey, on the exclusive Long Beach Island. The general contractor for the construction project was defendant ABC Construction. Under the express terms of the contract, the project had to be completed within 10 months following demolition.
As stated, the general contractor on the project was ABC Construction, a general contracting company that builds custom homes. ABC Construction managed the trim carpentry aspects of the project through another company called “DEF Construction.” With respect to the project, DEF Construction would tell plaintiff and the other carpenters what to do. Their project manager would give them instructions on how to perform their work.
ABC and DEF Construction were the decision makers with respect to all aspects of running the job. They decided which sub-contractors to hire. They scheduled all the subcontractors on the job. They maintained significant control over the trim carpentry workers, including plaintiff. They served as the project managers. They would be on site five days a week, several times a day.
ABC Construction provided the tools utilized by their trim carpenters including power tools, hand tools, electrical equipment. The tools were kept on a trailer on the project. ABC Construction also owned, maintained and provided the dangerous, OSHA-non-compliant table saw plaintiff was directed to use at the time of his injury.
ABC Construction and DEF Construction set the work hours of plaintiff and the other carpenters. They were expected to report to the job at 7:30 am each work day. They also paid their carpenters a set hourly wage. They even provided certain employee benefits to some such as health and other insurance. They maintained the power to hire and fire their carpenters. They monitored the work of their carpenters. They set rules as to when plaintiff could use the phone and conduct “personal business” while working on the project. In fact, the homeowner assumed the carpenters worked for ABC Construction.
Under well-settled construction law in New Jersey and under OSHA, general contractors and each respective tier of subcontractors like ABC Construction and DEF Construction here, have a 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. at 237-38 (1999); Kane, 278 N.J.Super. at 142-43; 29 C.F.R. §1926.16. As such, the general and sub-contractors are required to actively manage safety on this job site and see to it the subcontractors comply with the federal safety regulations and other safety standards in the construction industry.
As the general and supervising sub-contractor respectively, ABC Construction and DEF Construction were required under the law to comply with OSHA’s general health and safety provisions. This required them to implement and enforce a safety and health management system (“SHMS”) ABC Construction was also so required under the project contract which provides:
§ 8.2 SUPERVISION AND CONSTRUCTION PROCEDURES
§ 8.2.1 The Contractor shall supervise and direct the Work, using the Contractor’s best skill and attention. The Contractor shall be solely responsible for and have control over construction means, methods, techniques, sequences and procedures, and for coordinating all portions of the Work under the Contract… Contractor shall be fully and solely responsible for the jobsite safety…
ARTICLE 15 PROTECTION OF PERSONS AND PROPERTY
§ 15.1 SAFETY PRECAUTIONS AND PROGRAMS
The Contractor shall be responsible for initiating, maintaining and supervising all safety precautions and programs in connection with the performance of the Contract. The Contractor shall take reasonable precautions for safety of, and shall provide reasonable protection to prevent damage, injury or loss to:
- .1 employees on the Work and other persons who may be affected thereby;
- .2 the Work and materials and equipment to be incorporated therein; and
- .3 other property at the site or adjacent thereto.
The Contractor shall give notices and comply with applicable laws, ordinances, rules, regulations and lawful orders of public authorities bearing on safety of persons and property and their protection from damage, injury or loss. The Contractor shall promptly remedy damage and loss to property caused in whole or in part by the Contractor, a Subcontractor, a sub-subcontractor, or anyone directly or indirectly employed by any of them, or by anyone for whose acts they may be liable and for which the Contractor is responsible under Sections 15.1.2 and 15.1.3…
The critical elements of an effective safety health management system are: management commitment and employee involvement; worksite analysis; hazard prevention and control; training for employees, supervisors and managers. In short, ABC Construction and DEF Construction were required to implement and enforce a safety program, require safety training of all workers and take proactive measures to manage safety and prevent accidents. As part of his requirement to enforce the OSHA regulations on his project, Defendants ABC Construction and DEF Construction were also required to make sure its subcontractors do the same. Defendants ABC Construction and DEF Construction were also required to comply with OSHA’s hand and power tool safety regulations, and enforce same among the subcontractors.
OSHA’s hand and power tool safety regulations require, among other things:
- that all employees who perform work using saws receive appropriate and qualified power tool safety training;
- that all saws be maintained in a safe condition;
- that no employer permit the use of any unsafe tool;
- that all saw blades be guarded at all times;
- that push sticks be used obviate the need for the operator to place his hand in the danger zone;
- that any tool lacking a mandatory safety device be removed from production.
29 C.F.R. 1926.300; 301; 302; 304
There are also numerous pertinent construction industry safety standards that similarly require general health and safety management and specific steps to prevent laceration and other injuries from saws and other power tools. Defendants took none of these precautions on this (or any other) job site.
Contrary to their legal duty as the general and supervising subcontractors, neither defendants nor their principals have any OSHA training or certifications and they know next to nothing about OSHA construction safety principles. Neither ABC Construction nor DEF Construction have any occupational safety and health management system and did not require their subcontractors have them. Neither ABC Construction nor DEF Construction held, nor required others to hold, safety meetings. There was no recognition of, much less enforcement of the mandatory safety rules. Plaintiff carpenter testified:
Q. Did they ever conduct any OSHA work site safety training on this job site?
A. No, they did not.
Q. How about in the ten years that you had been working for ABC Construction Development, did they ever have one safety meeting?
A. No, they did not.
Q. In those ten years, how many jobs had you worked on, roughly, for ABC Construction Development?
A. I can’t even count them over the years… They are saying 88 jobs right now. I don’t know. Quite a bit.
Q. And did they ever provide any training or instruction on how to safely use power tools such as table saws?
A. No, they did not.
Q. Did they ever have any safety consultant come on the job to do an analysis of the job to make sure that everything was being done in accordance with OSHA so the workers were not injured?
A. No, they did not.
Q. Did they ever provide to you any kind of safety manual?
A. No, they did not.
Q. Did they maintain any kind of safety culture on their jobs where it was known to the workers that safety and compliance with the safety regulations was important?
A. No, they did not.
Q. OSHA has a publication called Safeguarding Equipment & Protecting Employees From Amputations. Did anyone ever go over this safety manual or give you any kind of instructions in things in this manual?
A. No, they did not.
Q. There is another publication from OSHA called The Guide For Protecting Workers From Woodworking Hazards. Did anyone from MT Development or DEF Construction Company ever go over this guide with you or the different things that are in this guide about the requirement to use guards, push sticks, et cetera?
A. No, they did not.
ABC Construction and DEF Construction had no safety management whatsoever and simply conducted business as though OSHA did not exist. DEF project manager testified:
Q. Isn’t it true that ABC Construction did not require its subcontractors to have a written health and safety program; isn’t that correct?
Q. Do you know, are you familiar with any of OSHA’s standards with respect to woodworking tools?
A. …I don’t know the official language, no.
Q. Do you know what OSHA says about preventing injuries and accidents in connection with using woodworking tools such as table saws?
A. I don’t know the actual words of what OSHA says, no.
Q. Are you familiar with any safety standards either from OSHA, the Associated General Contractors of America, the National Safety Council with respect to the use — the safe use of woodworking tools?
A. Not those specific institutions, no.
Q. Do you know what OSHA requires in the OSHA regulations with respect to safety features on a table saw?
Q. Does your company require its subcontractors to have an OSHA competent designated person on the work site?
Q. Does your company have a OSHA competent person on the work site?
Q. Do you know what, if any, safety qualifications any of the subcontractors on this project had, what their safety qualifications were?
A. No, not personally, no.
In fact, safety was not even a factor Defendants considered when evaluating their subcontractors. Defendants maintained significant control over the carpenters and their work. However, when it came to safety, noone oversaw that and the workers were left to “police themselves.” There was simply noone in charge of safety on the project. The project manager testified:
Q. So then who from ABC Construction was overseeing the work to see to it that it was being performed in accordance with OSHA’s construction site safety regulations?
A. I’m not sure about the OSHA safety regulations, but if I saw somebody doing something that I didn’t think was the right way to do it, I would talk to them about it, but not specifically related to OSHA, no.
The project cost was in excess of $1 million. Yet none of that was devoted to safety and preventing worker injury. Worker safety rules were simply not important to defendants; getting the job done and meeting the strict 10 month contract deadline was. As such, the carpenters were under significant pressure. As Plaintiff explained, “[T]hat job was in such a hurry. That job was about getting it done and that’s what it was about, push, push, push, push, push…” Defendants did nothing to see to it its carpenters were trained in the safe use of woodworking tools and table saws as per the OSHA regulations. Defendants had no policy or procedure in place that required guards on saws, contrary to the OSHA law. In fact, in the 10 years prior to Plaintiff’s injury, none of the ABC Construction table saws had the OSHA mandated guards on them.
Defendants’ lack of safety management and OSHA enforcement is further shown in their discovery responses. They were unable to produce any of the following basic safety documents required under the OSHA regulations:
- Minutes of any and all pre-job safety conference meetings.
- Safety/monitoring reports.
- Follow-ups of hazards found during safety inspection/ monitoring.
- Written job descriptions of the superintendent, supervisors, and foremen.
- Any letters, memos, or any documents transmitted between general contractor, contractor and subcontractors relative to safety.
- Safety inspection reports.
Contrary to their responsibility, Defendants conducted no investigation of the incident to determine what caused it, so as to prevent it from happening in the future. In fact, two years after Plaintiff’s serious injury, the job foreman for defendants still did not even know how it happened. In fact prior to the incident, there were other serious carpenter safety mishaps on the job including a large microbeam that slipped off a crane, nearly killing a carpenter. Defendants did nothing in response to that serious incident.
When asked what ABC Construction did to meet its admitted obligation to manage safety and enforce the OSHA safety requirements, its principal said he “hosted …safety inspections by various insurance companies…” However, when pressed to produce the documents he said he had to prove these insurance “safety inspections,” the truth was that ABC Construction’s workers compensation carrier conducted a single inspection after the two prior injury incidents. In reality Defendants conducted no safety inspections.
Defendants did not enforce the OSHA regulations with respect to power tool safety on the job. Defendants did next to nothing to comply with federal OSHA regulations nor industry standards for construction site safety; they simply did business as though OSHA did not exist. Although ABC Construction provided the table saw to the carpenters to complete the project work, it never provided them the owners manual nor enforced its safety requirements. The manual, which was not provided to the workers, nor its rules enforced, states in pertinent part:
GENERAL SAFETY RULES
- Warning: Read all instructions before operating product. Failure to follow all instructions listed below may result in …serious injury.
- MAINTAIN TOOLS WITH CARE. Keep blades sharp and clean for best and safest performance. …Poorly maintained blades and machines can further damage the blade or machine and/or cause injury.
- DO NOT ALLOW FAMILIARITY (gained from frequent use of your saw) TO REPLACE SAFETY RULES. Always remember that a careless fraction of a second is sufficient to inflict severe injury.
- USE A PUSH STICK OR PUSH BLOCK THAT IS APPROPRIATE TO THE APPLICATION TO PUSH WORK PIECES THROUGH THE SAW. A push stick is a wooden or non-metallic stick, usually homemade, that should be used whenever the size or shape of the work piece would cause you to place your hands within six inches of the blade. … Use saw-blade guard and splitter for every operation for which it can be used, including all through sawing.
- DO NOT PERFORM RIPPING CROSSCUTTING OR ANY OTHER OPERATION FREEHAND
How to avoid Them and Protect Yourself from Possible Injury.
c. Keep saw blade guard, splitter and anti-kickback teeth in place and operating properly. Keep teeth sharp. If teeth are not operational, return your unit to the nearest authorized DeWALT service for repair.
IMPORTANT: THE BLADE GUARD SHOULD BE IN PLACE FOR ALL POSSIBLE CUTS.
Kickback is a dangerous condition! It is caused by the work piece binding against the blade. The result is that the work piece can move rapidly in a direction opposite to the feed direction. During kickback, the work piece could be thrown back at the operator. It can also drag the operator’s hand back into the blade if the operator’s hand is at the rear of the blade.
- Always use the guard and make certain it is in good working order. The guard’s splitter helps prevent binding and anti-kickback teeth on each side of the splitter minimize the possibility of kickback. Use extra caution until the work piece is through the splitter and has engaged anti-kickback teeth.
IV. The Inevitable Result
A. The Dangerous, Non-Compliant Table Saws
The saw in question is a Dewalt 10″ Heavy Duty Job Site Table Saw. The saw was owned by ABC Construction and was furnished for use by the carpenters on the project. Defendants were familiar with the saw. The saw was a “community saw” and “everybody was using it.” The saw comes equipped with a blade guard. The guard is required to be on the saw at all times during user operation as per OSHA regulations, pertinent industry safety standards and the owners manual. The guard was removed from the saw at some point long before injuring Plaintiff. In fact for at least 10 years prior to injuring Plaintiff and another carpenter, ABC Construction table saws never had the guards on them. Defendants knew the saw had been in use on this project without the blade guard for many months before plaintiff was injured.
Yet nothing was done by any defendant to remove the saw from the job or make it safe. The project manager testified:
Q. When you saw this saw on the project, …what, if anything, did you do to make sure that the guard was put back on the saw?
A. I didn’t.
Only one month before plaintiff was injured, another worker was also injured on another table saw on the Job. After that incident, defendants did nothing to prevent workers from being injured on the dangerous table saws. The project manager testified:
Q. ABC Construction did not have any policy or procedure that required guards on its saws; is that correct?
Q. What, if any, steps did ABC Construction take after the other carpenter’s accident to determine how it occurred so as to prevent a reoccurrence?
A. I’m not sure that we did anything.
Under the regulations, industry standards and owners manual, safe use of the saw also requires the use of a push stick. A push stick is a device used to push the material into contact with the blade so the operator’s hand does not come near the blade cut point. Defendants did not require carpenters use a push stick on the project. The Project Manager himself however would use it. However, The Project Manager was ok with the other carpenters not using the push stick because he thought it would speed up production and maximize profits.
B. The Injury
Defendants ignored the OSHA regulations and pertinent construction industry safety standards on this project. As such, neither the supervisors nor the carpenters, including plaintiff, received any safety training, including about how to recognize hazards and take appropriate measures to address them. Plaintiff never received any of the mandatory OSHA safety training, including training about the safe use of woodworking tools. There were no safety meetings, inspections, controls nor preventative measures in place.
At the time of the incident, plaintiff was cutting one or two inches off a board that was approximately four feet long and five and a half inches wide. The fence was on the right side of the blade. He placed two fingers of his right hand and his thumb on the board. His two fingers were on top of the fence. He placed his left hand on the other side of the board to keep it in place. He pushed the board through the blade. When he had completed 30 to 50 percent of the cut, the incident occurred. He had been cutting the board and then he stopped in order to go forward again. At that time a kickback occurred; the blade caught the board and caused his left hand to come back over top of the blade. At the time he was using the table saw and for all the time that he has ever used the table saw, there was no guard, no anti-kickback device and no push stick. He sustained serious degloving injuries, underwent extensive surgical treatment and maintains a wage loss claim.
Had the regulations and industry standards been followed, plaintiff would not have been injured. Had the guard been on the saw, the kickback probably would not have happened, and even if it did, his hand would have passed over the guard rather than striking the blade. Given Defendants’ decision to disregard established safety rules, an incident like this, was sooner or later inevitable.
Yet as of two months after the incident, ABC Construction and DEF Construction still did not guard the table saws. And as of two years later, the carpenter foreman still did not know if the guard was ever put back on the table saw. In reality, it appears the guard was never put back on the saw.
The project manager was asked:
Q. In any event, you have this large piece of wood that has to be lifted by a crane come crashing down within a few feet of a carpenter. You have another highly experienced carpenter suffer a severe kickback injury which put him out of work for six months. Only a month later you have another carpenter working on an unguarded saw suffer a severe laceration to his hand[.] [Y]ou have a makeshift scaffolding on the third level or second level of a house[.] [D]id you guys ever have any meetings and say hey, enough is enough, we got to get our stuff together here, we got to take some OSHA classes, we got to get serious about safety before something really bad happens, any discussions about that after any of this?
Yet in response he said all they did was discuss, “better ways to do things…”
I. OSHA WAS PASSED TO PREVENT THE KIND OF NEEDLESS JOB SITE INJURY PLAINTIFF SUSTAINED
In the United States, about a million workers have been killed on-the-job since the 1920′s. Our country’s prior industrial history is even more compelling. The United States Bureau of Labor Statistics estimated annual workplace fatalities at 30,039 in the early 1920’s. 75,000 railroad workers died in the quarter century before World War I alone. The construction industry was just as dangerous, if not more so. The International Association of Bridge and Structural Steel Workers (Iron Workers), for example, lost a full one percent of its membership to workplace accidents in fiscal year 1911-12. A leading skyscraper construction firm admitted at the end of the 1920’s that one worker died for every 33 hours of employed time during the previous decade. The United States led the world in casualty rates. Coal worker fatality rates were triple those in the United Kingdom, to cite one example. Linder, Marc. Fatal Subtraction: Statistical MIAs on the Industrial Battlefield. 20 J. Legis. 99 (1994).
Shamefully high fatality and injury rates continued beyond the early twentieth century. Into the 1990’s, the Iron Workers continued to report losing about 100 members a year to workplace accidents. Responding to National Safety Council statistics suggesting that 14,000 Americans are killed and 2.5 million permanently injured in the workplace every year, the United States Congress passed the Occupational Safety and Health Act of 1970 “to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources.” At the time of OSHA’s passage, the country was losing more men and women to workplace accidents than to the war in Vietnam. Today, according to OSHA’s own numbers, 6,000 American workers per year die from workplace accidents, 6 million American workers per year suffer injuries due to such accidents, and 50,000 American workers per year die from illnesses related to occupational hazards. Linder, 20 J. Legis. 99; see also Getting Away with Murder: Federal OSHA Preemption of State Criminal Prosecutions for Industrial Accidents. 101 Harv. L. Rev. 535 (1987).
Death and disability due to unsafe or unhealthy workplaces remain America’s hidden epidemic. In 1994, there were 6.8 million job-related injuries and illnesses in the private sector alone, an average of more than 18,000 injuries and/or illnesses each and every day of the year. U.S. Department of Labor, Bureau of Labor Statistics, Annual Survey of Occupational Injuries and Illnesses, 1994. The cost of these injuries and illnesses has been estimated at $120 billion for 1994 alone. National Safety Council, Accident Facts, (1995 Edition). Researchers at Mt. Sinai Medical School have estimated that 50,000 to 70,000 workers die each year as a result of major occupationally acquired diseases like cancer, lung disease and coronary heart disease. Landrigan PJ, Baker DB, “The recognition and control of occupational disease,” Journal of the American Medical Association 1991;266:676-80. In 1998, the number of confirmed deaths due to occupational injuries in the U.S. was 6,026, approximately one-tenth the estimated number of deaths due to occupational illnesses. U.S. Department of Labor, Bureau of Labor Statistics, “National Census of Fatal Occupational Injuries,” 1998, U.S. Department of Labor, August 4, 1999.
OSHA was implemented with these systemic inadequacies, as well as our country’s bloody industrial history, in mind. OSHA was enacted to provide prevention. However, as discussed earlier, a high incidence of occupational injury and illness persist. When construction site leaders ignore OSHA, the imposition of liability through tort law is essential to discourage irresponsible conduct, compensate the injured and create incentives to minimize risks of harm. Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 448 (1993); People Express Airlines, Inc. v. Consolidated Rail Corporation, 100 N.J. 246, 266 (1985); Weinberg v. Dinger, 106 N.J. 469, 494 (1987); see also Prosser and Keeton on Torts § 4 (5th Ed.1984) (noting that “prophylactic” factor of preventing future harm is a primary consideration in tort law). Application of tort law is particularly important in this case where for at least 10 years defendants had a policy of ignoring safety rules and providing unguarded, OSHA non-compliant table saws on its jobs. And when asked what defendants did in response to a worker being injured on one of these saws, The Project Manager responded, “I’m not sure that we did anything.” Tort law provides the bite to work in conjunction with OSHA’s bark. It provides real economic incentive for firms to invest in safety for their workers, rather than turn a profit on the potential for injury.
Defendants’ motions for summary judgment, which are based upon the incorrect argument that they had no duty to enforce safety on this multi-million dollar project, are the antithesis of these principles and controlling New Jersey law. ABC and DEF Construction are perfectly content with the entire lack of OSHA enforcement and the grossly unsafe table saw they made available to their carpenters.
II. THE SUMMARY JUDGMENT MOTION OF DEFENDANT DEF CONSTRUCTION WAS PROPERLY DENIED BECAUSE AS A MANAGING SUBCONTRACTOR, IT HAD A RESPONSIBILITY UNDER NEW JERSEY AND FEDERAL LAW AND INDUSTRY STANDARDS TO MANAGE SAFETY AND ENFORCE OSHA AMONG ITS SUBORDINATE CARPENTERS
A. The Law is Clear DEF Construction is Required to Manage Safety
Congress enacted the Occupational Safety and Health Act (the OSH Act), 29 U.S.C.A. § 651 to § 678, to “assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources.” 29 U.S.C.A. § 651(b); see Gonzalez v. Ideal Tile Importing Co., Inc., 371 N.J. Super. 349, 359 (App. Div. 2004). In pursuing those goals, Congress authorized the Secretary of Labor to promulgate health and safety standards for workplaces, 29 U.S.C.A. § 655, and established the Occupational Safety and Health Administration (OSHA) to enforce those standards through inspections and investigations, 29 U.S.C.A. § 657; Gonzalez, supra. The OSHA Act requires “employers” to comply with specific standards and also imposes a general duty on employers to provide a workplace “free from recognized hazards that are causing or are likely to cause death or serious physical harm.” 29 U.S.C.A. § 654(a); Gonzalez at 359-60. Violators of specific OSHA standards or OSHA’s general duty to provide a safe workplace face civil penalties, as well as criminal sanctions, 29 U.S.C.A. § 666. Gonzalez, supra.
Each tier of subcontractor down the chain also has a responsibility to the OSHA Regulations. Specifically, the OSHA regulations provide:
[N]o contractor or subcontractor for any part of the contract work shall require any laborer or mechanic employed in the performance of the contract to work in surroundings or under working conditions which are unsanitary, hazardous, or dangerous to his health or safety.
29 C.F.R. § 1926.20. As such, contractors cannot delegate away their duties to maintain a safe workplace under the federal OSHA regulations. Rather, the general contractor must maintain overall responsibility for the project and each respective interim contractor maintains responsibility for his part:
(a) The prime contractor and any subcontractors may make their own arrangements with respect to obligations which might be more appropriately treated on a jobsite basis rather than individually. Thus, for example, the prime contractor and his subcontractors may wish to make an express agreement that the prime contractor or one of the subcontractors will provide all required first-aid or toilet facilities, thus relieving the subcontractors from the actual, but not any legal, responsibility… In no case shall the prime contractor be relieved of overall responsibility for compliance with the requirements of this part for all work to be performed under the contract.
(b) By contracting for full performance of a contract…, the prime contractor assumes all obligations prescribed as employer obligations under the standards contained in this part, whether or not he subcontracts any part of the work.
(c) To the extent that a subcontractor of any tier agrees to perform any part of the contract, he also assumes responsibility for complying with the standards in this part with respect to that part. Thus, the prime contractor assumes the entire responsibility under the contract and the subcontractor assumes responsibility with respect to his portion of the work. With respect to subcontracted work, the prime contractor and any subcontractor or subcontractors shall be deemed to have joint responsibility.
(d) Where joint responsibility exists, both the prime contractor and his subcontractor or subcontractors, regardless of tier, shall be considered subject to the enforcement provisions of the Act.
29 C.F.R. §1926.16 (emphasis added); see Alloway v. Bradlees, 157 N.J. at 237-38. (a general and sub-contractor on a work site has a non-delegable duty to maintain a safe workplace); Kane v. Hartz Mountain Industries, 278 N.J.Super. 129, 141-44 (App.Div. 1994) (joint liability among general and interim subcontractor).
This principle was discussed in great detail by the Supreme Court in Alloway v. Bradlees, 157 N.J. 221, 236-37 (1999) which cited with favor the discussion of this principle in Bortz v. Rammel, 151 N.J.Super. 312 (App.Div. 1977) as follows:
[The Bortz court] determined that the Construction Safety Act and its implementing regulations, primarily N.J.A.C. 12:180-3.15.1, “substantially qualified” the common-law rule by imposing a non-delegable duty on a general contractor to “assure compliance with the requirements of this Chapter from his employees as well as all subcontractors,” and that those legislative mandates gave rise to a duty on the part of a general contractor “to take the necessary steps to insure the safety of [the subcontractor’s] employees.” Id. at 319-20.
In Meder, supra, the court observed that OSHA regulation 29 C.F.R. § 1926.16 imposed the same non-delegable duty for workplace safety on a general contractor as had the Construction Safety Act. 240 N.J.Super. at 476.
Alloway, 157 N.J. at 236-237. The Court then recounted the development of the non-delegable duty principle beyond Bortz, through Meder and Kane, and stated, “We find the reasoning of those decisions to be sound…” Id. at 236.
The Alloway Court reaffirmed the principle advanced by plaintiffs in the instant matter, that as having assumed the role of managing the trim carpenters on the project (and in fact treating them as though they were in house employees), DEF Construction had a down-the-chain non-delegable responsibility to manage safety on the work site and enforce the OSHA regulations:
The Appellate Division in Kane, supra, considered the effect of OSHA regulations on the existence and scope of a duty of care, and stated that general and subcontractors have 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.” 278 N.J.Super. at 142-43…“to ensure the protection of all of the workers on a construction project, irrespective of the identity and status of their various and several employers, by requiring, either by agreement or by operation of law, the designation of a single repository of the responsibility for the safety of them all.”
Alloway v. Bradlees, 157 N.J. at 237-38.
Thus under well-settled construction law in New Jersey, general and interim subcontractors like ABC Construction and DEF Construction, respectively, have 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. at 237-38 (1999), citing, Kane v. Hartz Mountain, 278 N.J.Super. 129, 142-43 (App. Div. 1994) State public policy and OSHA impose a duty on the general and each tiered sub-contractor to ensure the protection of all of the workers on a construction project, irrespective of the identity and status of their various and several employers, by requiring, either by agreement or by operation of law, the designation of a single repository of the responsibility for the safety of them all. Alloway, 157 N.J. at 238, citing Bortz v. Rammel, 151 N.J.Super. 312, 321 (App. Div. 1977), cert. den. 75 N.J. 539; 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). This was also discussed at length in plaintiff’s liability expert report. (Exhibit A, Report of Vincent Gallagher).
DEF Construction shares joint and several responsibility for failing to see to it that safety was managed and OSHA enforced with respect to its subordinate carpenters on the site. As the Appellate Division explained in Kane:
We found [in Meder] that “violation of the obligations imposed by the federal regulations supports a tort claim under state law.” 29 C.F.R. § 1926.16 and 29 C.F.R. § 1926.20 dictate that the prime contractor and any subcontractors are responsible jointly for any failure to comply with OSHA safety standards such as are at issue in the present case. Because of these provisions, the trial judge charged the jury that both Howell [interim sub-contractor that oversaw plaintiff’s employer] and the Hartz defendants [general contractor/developers that hired Howell] were responsible for any OSHA violations.
We hold that Hartz Mountain, as the general contractor, and Howell, as the subcontractor for the erection of the structural steel, each had a non-delegable duty to maintain a safe workplace. This duty is imposed to ensure “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. Bortz, supra, 151 N.J.Super. at 321.
Kane v. Hartz Mountain Industries, 278 N.J.Super. 129, 141-44 (App.Div. 1994); See also, e.g. Carvalho v. Toll Bros., 143 N.J. 565 (1996) (contractor with control over sub-contractor responsible for job site OSHA violations); Dawson v. Bunker Hill Assoc., 289 N.J.Super. 309, 321 (App.Div. 1996) (“OSHA regulations impose a duty to maintain a safe workplace upon the “employer” which is defined as ‘contractor or subcontractor.’”); Alloway v. Bradlees Inc., 157 N.J. 221, 237-38 (1999) (same); see also 29 CFR §1926.32(k) (defining “employer” for purposes of OSHA safety training, compliance and enforcement under §1926.20(b)(1) as “contractor or subcontractor.”)
In this case, as has been exhaustively set forth above, both defendants ABC Construction and DEF Construction failed to meet their responsibilities under OSHA and the other workplace safety standards. Both defendants failed to see to it that the sub-contractors were properly trained in OSHA and power tool safety; made a conscious decision to disregard the safety regulations and industry standards; failed to see to it the proper equipment was on site to safety complete the work and; failed to properly supervise and manage safety. As such plaintiff was needlessly caused to use an unsafe table saw that had a safety guard removed, had no anti-kickback teeth and no push stick. The summary judgment motions should be denied.
Indeed, the law recognizes the realities of construction sites, that it is the general and tiered contractors that have the power and position to enforce workplace safety rules and to generally foster an environment where workplace safety and the well being of the workers on the job are given high priority. The law recognizes that the workers at the bottom of the hierarchy are powerless to take any real enforcement role and will in fact often times be pressured to work in unsafe conditions without complaint, or risk losing their job. See generally e.g., Suter v. San Angelo Foundry & Mach. Co., 81 N.J. 150 (1979) (recognizing that workers of have “no meaningful choice” but to work in unsafe conditions; they either do so “or [be] subject to discipline or being labeled as a troublemaker.” Cavanaugh v. Skil Corporation, 331 N.J.Super. 134, 185 (App. Div. 1999) (workers on construction sites often have no real choice about working under known unsafe conditions.); Tirrell v. Navistar Intern., Inc., 248 N.J.Super. 390 (App.Div. 1991) (same- construction site worker who was not paying attention was killed when tractor trailer backed up over him).
As such, general and sub-contractor enforcement is a key component of the federal workplace safety scheme embodied in OSHA. DEF Construction’s arguments about no duty to the plaintiff contradicts long-standing workplace safety law in the State of New Jersey.
B. Pertinent Industry Standards Are Equally Clear There Must Be Top-down Enforcement of Safety on a Construction Project
In determining liability against a contractor in an OSHA workplace safety injury case, the Court and/or jury may also consider industry standards. See, e.g., Model Jury Charge 5.10H, “Standards of Construction, Custom and Usage in Industry or Trade.” It states, among other things:
Some evidence has been produced in this case as to the standard of construction in the industry. Such evidence may be considered by you in determining whether the defendant’s negligence has been established. If you find that the defendant did not comply with that standard, you may find the defendant to have been negligent.
Model Jury Charge 5.10H. As the Appellate Division explained in Constantino v. Ventriglia, 324 N.J.Super. 437 (App.Div. 1999), a workplace safety injury case:
Plaintiff was entitled to have the jury consider plaintiff’s expert’s reliance on the OSHA standards to demonstrate the construction industry standard of care, even though Ventriglia may not have been subject to OSHA regulations or jurisdiction.
This conclusion is consistent with established precedent allowing industry standards as evidence of a standard of care. See McComish v. DeSoi, 42 N.J. 274 (1964) (manuals properly admitted as safety codes):
[A] safety code ordinarily represents a consensus of opinion carrying the approval of a significant segment of an industry. Such a code is not introduced as substantive law, as proof of regulations or absolute standards having the force of law or of scientific truth. It is offered in connection with expert testimony which identifies it as illustrative evidence of safety practices or rules generally prevailing in the industry, and as such it provides support for the opinion of the expert concerning the proper standard of care.
Constantino, 324 N.J.Super. at 442, 443. Defendants ABC and DEF Construction violated virtually every pertinent industry standard as far as safety management goes on this multi-million dollar project. The summary judgment motions were properly denied.
A former OSHA official and an industry recognized expert in the field of occupational health and safety that has been extensively published writes:
For decades, both industry authorities and government authorities have been in agreement with regard to the steps that a general contractor/contractor should take in order to ensure that work performed on their behalf is done safely and in compliance with OSHA.
Among the safety principles recognized in the industry are the following:
- Safety begins at the top.
- Assignment of specific responsibility and accountability are key to successful construction safety management.
- Safety begins in the design stages – on the drawing board.
- Safety is a shared responsibility.
- A proactive rather than reactive approach is best.
- Accidents are foreseeable and predictable.
- Controls can be anticipated and put in place before exposure to the hazard takes place.
- Planning is essential.
- It is irresponsible to allow the evolution of a hazard and hope that safety inspection discovers the hazard before injury results.
On this safety-dysfunctional project, there was simply no safety management or oversight. There was no planning. There were no safety inspections. There were no safety meetings or safety mechanism set up whatsoever. Plaintiff carpenter was provided no safety equipment or training to even recognize workplace hazards. And if he did have a safety concern, there was nowhere for him to go. He was simply expected to do his job the best and fastest way he could.
Defendants ABC and DEF Construction had a duty to manage safety down the tier. They failed in that regard. After the incident there was no investigation and nothing done to prevent a reoccurrence. In fact, long after this tragic incident defendants still claimed to not know how the incident occurred and continued “business as usual.” The record reflects they made a conscious decision to disregard safety rules and standards so that they could achieve the lowest bid.
C. DEF Construction is Further Liable under General Negligence Principles and a “Fairness Analysis” for the Abysmal Work Safety Practices and the OSHA Violations Which Resulted in Plaintiff’s Injuries
Defendants’ motions for summary judgment were also properly denied under the general negligence principles discussed in Alloway and Carvalho v. Toll Brothers, 143 N.J. 565 (1996) (summary judgment denied for daily project manager site engineer that oversaw construction project). Under those principles liability can also attach irrespective of the formal labels of the parties and instead by consideration of several factors- the foreseeability 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).
This accident was clearly foreseeable and the attendant risk was severe. In considering whether the risk of injury was foreseeable, the Court looks to the “likelihood of the occurrence of a general type of risk rather than the likelihood of the occurrence of the precise chain of events leading to the injury.” Wartsila NSD N. Am., Inc. v. Hill Int’l, Inc., 342 F.Supp.2d 267, 281-82 (D.N.J.2004); Cassanello v. Luddy, 302 N.J.Super. 267 (App.Div. 1997) (“Foreseeability does not depend on whether the exact incident or occurrences were foreseeable. The question is whether an incident of that general nature was reasonably foreseeable.”). It is clearly foreseeable that providing a table saw with no blade guard, kick back teeth or push stick to carpenters with no safety training will, sooner or later, result in the kind of severe lacerations that both plaintiff, and a month earlier, another carpenter, sustained.
Indeed, unguarded saws and other power tools are notorious for causing severe injuries and death on job sites. OSHA states:
Amputations are among the most severe and disabling workplace injuries that often result in permanent disability. They are widespread and involve various activities and equipment. (The U.S. Bureau of Labor Statistics 2005 annual survey data indicating that there were 8,450 non-fatal amputation cases- involving days away from work – for all private industry. Approximately, forty-four percent (44%) of all workplace amputations occurred in the manufacturing and rest occurred across the construction, agriculture, wholesale and retail trade, and service industries.) These injuries result from the use and care of the machine such as saws….
CONTROLLING AMPUTATION HAZARDS
Safeguarding is essential for protecting employees from needless and preventable injury. A good rule to remember is:
- Any machine part, function, or process that may cause injury must be safeguarded.
The 2002 OSHA publication, “Hand and Power Tools” notes:
- Tools are such a common part of our lives that it is difficult to remember that they may pose hazards. Tragically, a serious incident can occur before steps are taken to identify and avoid or eliminate tool-related hazards.
- Employees should be trained in the proper use of all tools. Workers should be able to recognize the hazards associated with the different types of tools and the safety necessary
- Power tools must be fitted with guards and safety switches; they are extremely hazardous when used improperly.
The exposed moving parts of power tools need to be safe-guarded. Belts, gears, shafts, pulleys, sprockets, spindles, drums, flywheels, chains, or other reciprocating, rotating, or moving parts of equipment must be guarded.
Safety guards must never be removed when a tool is being used. Portable circular saws having a blade greater than 2 inches (5.08 centimeters) in diameter must be equipped at all times with guards.
The owners manual for the saw, which defendants never provided to plaintiff nor conducted training about, states that removal of the guard and other safety devices, “may result in…serious injury.” It also states that, “poorly maintained blades and machines can further damage the blade or machine and/or cause injury.” (Exhibit L, Saw Owners Manual at 1, 2) A power tools safety training document states:
- In today’s fast -paced construction industry, power tools and power saws improve production and help us maintain high standards of quality.
- Power tools pose greater hazards than hand tools. The high speeds and high torques at which power tools and power saws operate means that it’s much easier for them to cause damage and injury and they can do it much faster. Accidents caused by improper handling and poor maintenance can result in cuts, punctures, electric shock, burns and eye injuries.
Clearly the attendant degloving risk of defendants’ policy of supplying table saws without guards and other safety devices and total failure to follow established safety rules was foreseeable and severe.
As a carpenter subordinate to DEF Construction, plaintiff was in a weak position. He was expected to complete the job as fast as possible with the tools and equipment provided, and under the conditions established, by defendants. Defendant took advantage of this weakness for their own advantage/profit, ease, and benefit. Each of these entities was charged with the responsibility, under normal and accepted construction site practice and OSHA regulations, to manage safety for the protection of the workers. They shirked this responsibility. It is simply unacceptable that no entity with any measurable level of overall site control accepted even the smallest level of responsibility for worker safety on this job site. Critically needed safety equipment was not provided, no safety meetings or instructions were undertaken, and there was not even the most minimal concern for enforcement with respect to site safety. Under these circumstances, it is hardly surprising that a worker on this project was seriously injured.
Plaintiff had no real power to address dangerous conditions on the job site. He was given his directions and expected to complete the job without complication or complaint. He was provided unsafe equipment and did not have the required benefit of safety training and enforcement. Plaintiff would not have been injured if DEF Construction in the chain of command on the job site and charged with safety responsibility had even minimally done their job. Safety cannot be left to luck or even operator discretion. Plaintiff’s injuries were entirely predictable and in fact occurred to another only a month before him on the same project. Under the circumstances and should have been avoided by proper, normal, accepted and legally mandated job site safety. This incident was clearly foreseeable and the attendant risk was severe.
The relationship of the parties was such that DEF Construction had the “opportunity and capacity … to have avoided the risk of harm.” Alloway at 231. The risk of harm here was defendants’ overall failure to manage safety and enforce OSHA. The specific risk was DEF Construction providing, allowing and in fact expecting the carpenters to use the dangerous, unguarded table saw. As a managing contractors on the project, DEF Construction had the ability to set the rules of the road for the subordinate carpenters on the project. They all had the power to hire and fire the down-the-chain contractors and could have- and in fact had the legal obligation to- enforce the safety rules and standards. 29 C.F.R. §1926.16 (“With respect to subcontracted work, the prime contractor and any subcontractor or subcontractors shall be deemed to have joint responsibility…. regardless of tier.”); Carvalho v. Toll Bros., 143 N.J. 565 (1996) (contractor with control over sub-contractor responsible for job site OSHA violations); Kane, 278 N.J.Super. at 142-43 (“general and subcontractors have a joint, non-delegable duty to maintain a safe workplace that includes “ensur[ing] ‘prospective and continuing compliance’ with [OSHA regulations]”); Alloway v. Bradlees Inc., 157 N.J. at 237-38 (1999) (same). As set forth in exhaustive detail above, DEF Construction maintained significant control over the project.
With respect to the public policy prong of the “fairness analysis,” this has also been addressed in exhaustive detail in the Legal Discussion, Section I above. Suffice to say, there is a strong public interest in workplace safety and holding accountable those who needlessly ignore established safety rules. OSHA’s “Small Business Handbook” says:
Safety and Health Add Value
Simply put, protecting people on the job is in everyone’s best interest- our economy, our communities, our fellow workers and our families. Safety and health add value to businesses, workplaces and lives.
The importance of enforcing the safety rules is clearly in the public interest as Congress and our Supreme Court has firmly established.
Combining and weighing these factors–the foreseeability of the nature and severity of the risk of injury based on the defendant’s actual and/or implied knowledge of dangerous conditions, the relationship of the parties and the connection between the defendant’s legal responsibility for work progress and safety concerns, and the defendant’s ability to take corrective measures to rectify the dangerous conditions- considerations of fairness and sound public policy further impel the recognition of a duty on ABC Construction and DEF Construction to meet their obligations under the law. They had a duty to avoid the risk of injury to employees of its subcontractors. Viewing all facts in the light most favorable to plaintiff’s contentions, defendants’ motions for summary judgment were properly denied. See Brill v. Guardian Life Ins. Co., 142 N.J. 520 (1995).
As a result of these failures, Plaintiff carpenter suffered severe hand and finger laceration injuries. He required extensive surgical treatment and rehaibiltation. He was out of work for over a year and incurred substantial medical bills. He is permanently injured. The case ultimately settled for $555,000 after a long battle with the insurance company for the defendants and their attorneys. The monies a meant to make up for the harms and losses plaintiff carpenter needlessly sustained.
If you or a loved one has been injured at work because a contractor failed to follow workplace safety rules, contact the experienced New Jersey personal injury and work accident attorneys at the Clark Law Firm, PC.