There is a lot of complicated construction happening right now in our part of the country. And these huge and complex construction projects involve all kinds of things, from the various transportation and bridge programs underway throughout the Hoosier State to planned ventures like the South Branch riverfront development in Illinois, being built in phases as The 78 Chicago. These are noisy, busy, massive builds where all sorts of tasks are being undertaken at all hours of the day and night. There are lots of construction workers on site, and there are lots of different companies and professional firms involved in making sure things proceed with minimal delay.
When a construction worker is hurt in the hubbub of this type of site activity, with lots of people and companies involved with varying degrees of possession, custody, and control of aspects of that jobsite, determining legal liability for the work accident can be intricate and difficult.
In all the construction bustle, failing to protect a worker may cause catastrophic harm. And the failure here may be that of one or more entities who are not the accident victim’s employer. They may not know or even be aware of the worker, but nevertheless have caused or created the hazard found to be a contributing cause to that person’s bodily harm.
For construction workers, it is important to understand how these legal duties exist towards keeping them safe, especially from dangerous falls on the construction site. Fatal falls are notorious and well-known risks for construction workers. Read, Fatal Falls in Construction Caused by Employers Failing to Plan for Worker Safety; and Deadly Construction Fall Accidents in Illinois and Indiana.
So, after a horrific construction fall accident, how is this breach of duty discovered and dealt with? There are different approaches here. First, there is the analysis of regulatory violations by OSHA inspectors. Second, there are the civil claim and workers’ compensation application provided by state law, where statutory benefits and injury damages may be awarded to the worker victim and their loved ones.
Consider the following, from the perspective of a construction worker seriously hurt in a fall from a scaffold on a complex construction site in Illinois or Indiana:
OSHA Multi-Employer Citation Policy
From the perspective of the Occupational Health and Safety Administration (“OSHA”), these big construction jobsites are known as “Multi-Employer Worksites” where OSHA’s Multi-Employer Citation Policy applies. Developed over 25 years ago, this policy is designed to deal with work accidents where several employers have workers on the project at the same time and how to determine regulatory responsibility for the construction worker’s injury. See, OSHA’s Multi-Employer Citation Policy, OSHA Instruction CPL 02-00-124 (Dec. 10, 1999).
On a multi-employer construction site, multiple parties can be citable for the same fall hazard under OSHA’s Multi Employer Citation Policy. They are delineated within the regulations as either (1) creating; (2) exposing; (3) correcting; or (4) controlling employers.
The Creating Employer
Under OSHA Regulations, the “creating employer” is the party whose work, omission, or equipment created the hazardous condition. Scaffolding fall example: this might be an installer who improperly attached an anchor, or a subcontractor who modified a scaffold anchorage, in violation of 29 CFR §1926.502.
The Exposing Employer
OSHA will consider an employer whose employees were exposed to the hazard as the “exposing employer.” Scaffolding fall example: this might be a trade contractor whose worker used a personal fall arrest system and still suffered a fall injury, in violation of Subpart M of 29 CFR §1926.502.
The Correcting Employer
The company with the responsibility to correct the hazard is identified under the regulations as the “correcting employer.” Scaffolding fall example: this could be a maintenance contractor responsible for inspecting anchors or a scaffold erector retained to repair fall‑arrest components; not fixing a known hazard or trying to do so without solving the problem is a violation of 29 CFR §1926.502.
The Controlling Employer
The “controlling employer” is the owner and/or general contractor. This is the company or legal entity with the power and authority not only to direct worksite operations but to require compliance by other companies and individuals on the worksite. This is the Big Kahuna of the construction project.
Scaffolding fall example: the owner of the office tower under construction may have failed to inspect and oversee things, including making sure there were competent people on the site; and failed to exercise their rightful authority to make others meet their legal duties to abate hazards involving the scaffolding and make sure regulations for fall safety were respected. This failure to exercise reasonable care to prevent the hazard from hurting the worker is also in violation of 29 CFR §1926.502. It does not matter if the worker victim was not their employee.
Work Accident Civil Claims in Multi-Employer Construction Projects
Considering the example of a construction worker suffering debilitating injuries in a fall from a scaffold on a complex construction project where there are several employers or “powers that be,” the safety regulations defining the various employers involved is helpful to their case. However, these labels cannot be used to establish legal recompense for all those who have failed in their duties and caused the worker’s harm.
Workers’ Compensation Claim for Benefits
A severely injured scaffold fall victim must look to state law for financial justice. First there is the filing for workers’ compensation benefits under the state workers’ compensation system. The worker does not need to explain fault here; these are insurance claims processed pursuant to the employer’s mandatory work accident liability insurance. The process itself is overseen by the state workers’ compensation statutes, independent of any court filing. For more, read The Two Main Differences Between Workers Compensation and Personal Injury Claims for Accident Victims in Indiana and Illinois.
Civil Injury Claims for Damages
The construction worker hurt in a fall from a scaffold on a large construction project has the right to independently investigate the accident, with the help of accident reconstruction experts and legal advocates. After their findings and legal analysis, the fall victim may be able to file civil claims against several parties involved in the project, some labelled as the various employers under the OSHA Regulations, as well as other entities on the site.
These claims may be made using different legal theories. A general contractor or owner (the “controlling employer”) may be liable under negligence law, for instance, as well as the company that set up the scaffold (the “creating employer”). There may be product liability claims against the manufacturer of the scaffold, who is not considered an “employer” under the OSHA Policy. There might be “failure to warn” claims against the manufacturer or distributor of a harness lanyard that snapped and caused the worker to fall from the scaffold. Also not considered an “employer” by OSHA.
The OSHA inspection records as well as any citations against the “employers” are helpful in successfully pursuing the civil injury claims for monetary damages by the injured scaffold fall victim. However, they do not prove up liability all by themselves. The worker victim will have the burden of proof to provide authenticated and admissible evidence of each party who breached a legal duty of care which contributed to the accident and its aftermath.
Multi-employer construction sites are extremely dangerous workplaces, even though they are heavily regulated for worker safety and have so many different people on the site with legal duties of care and protection of everyone on the job. Too many chefs in the kitchen may be too true sometimes, and the result of disregarding safety on these loud and chaotic worksites all too often results in tragic and irreversible harm to a construction worker, often in a sudden fall.
For more, read:
- Rescue and Construction Fall Deaths: Employer’s Duty of Safety
- Deadly Construction Fall Accidents: Duty to Provide Fall Safety Equipment Protections for Construction Workers
- Construction Falls: Scaffolds and Ladders Can Cause Serious Accidents
- Who Faces the Greatest Risk of Dying from a Construction Site Fall?
Multi-employer construction projects are high risk for all construction workers, at all times. There are a great many of these projects ongoing right now in Illinois and Indiana. The dangers are great for our construction workers. Please be careful out there!
