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WHAT TO DO WHEN A CONSTRUCTION SITE INJURY CAUSES SERIOUS PERSONAL INJURY OR WRONGFUL DEATH

By William S. Bailey

Construction sites have always been dangerous places to work, with serious injury and death being much more common than in more sedentary occupations. U.S. Department of Labor statistics for 1995 show that 1,000 of the 6,210 on-the-job deaths for that year were in the construction deaths. Some of the reasons for the high injury rates in the construction trades are:

1. Extreme time pressure to get the job done is the rule rather than the exception.

2. An industry tradition of only giving lip service to safety -- i.e., hard hats, glasses and posters. However, most company safety officials do not have any real power on a job and are there more for window dressing than anything else.

3. Unclear lines of authority for safety on the job, particularly with multiple contractors and subcontractors involved.

4. Relatively weak or inconsistent inspection and enforcement of the Washington Industrial Safety & Health regulations by the Department of Labor & Industries.

5. Frequent work at heights, or around moving heavy equipment.

6. Constant movement of heavy, loosely packed building materials around the job site.

For these and a number of other reasons, construction workers and ultimately their families pay a very heavy price every year in terms of injuries on the job.

VITAL ROLE OF WASHINGTON COURT DECISIONS

This article draws together the experience of major construction injury cases handled by our firm over the past 10 years in an attempt to provide a useful guide to plaintiffs' attorneys on how to successfully pursue justice on behalf of injured construction workers and their families.

This article will look at construction litigation since the Stute decision and analyze how these cases have been fought. Unfortunately, serious injuries continue to occur in the construction industry and when this happens, a concerted effort is made by all potential defendants to place blame elsewhere. At its core, this is somewhat reminiscent of a "every person for themselves" free for all.

Until the Washington State Supreme Court handed down Kelley v. Howard S. Wright Construction , 90 Wn.2d 323 (1978), there was little that could be done when a construction worker was hurt, other than filing a workers' compensation claim. As a no-fault system providing limited benefits, workers' compensation was never intended to provide full compensation to the injured. Rather, it was a means of keeping injured workers and their families from starving or going without needed medical care.

Under the workers' compensation system, human life or health is relatively cheap in comparison to the perceived cost of safety. As a part of the bargain to lessen employer resistance to workers' compensation when it was enacted at the first part of this century, the awards to injured workers were kept at artificially low levels. They still are. While workers' compensation is a good system, for what it is, it does not provide either the necessary economic incentives to the construction industry to make work sites safer or replace the losses sustained by injured workers and their families. Third party tort actions with awards not artificially limited have the beneficial effect not only of providing compensation to injured workers and their families, but also of providing the economic incentive for construction businesses to realize that “safety pays.”

KELLEY v. HOWARD S. WRIGHT -- A MOVE TOWARD GENERAL CONTRACTOR ACCOUNTABILITY

The Washington State Supreme Court took a giant step forward making construction sites safer by holding that the general contractor is liable for injuries to employees of independent contractors resulting from their work. The Court made this finding based on common law, statute and contractual assumption of duty. Recognizing that the general contractor has control over the work being done on a construction site, the Court found a corresponding duty to provide a safe place to work within the scope of that control. Further, control was not to be measured as actual interference with the work of a contractor, but the right to exercise such control.

The Supreme Court in Wright went beyond control and held that the inherently dangerous nature of construction work was another reason to impose a duty of care on the general contractor. The Court held that the work "By its very nature creates some peculiar risk of injury, and the general contractor has reason to know of the inherent hazards of the work." Id. , 90 Wn.2d at 332. Consequently, the general contractor was held to have a duty to take reasonable precautions against the inherent hazards of the work.

A salient feature of the Kelley decision was the finding that the predecessor of WISHA, RCW 49.16.030, created a non-delegable duty of the general contractor to furnish a safe place of work.

STUTE v. P.B.M.C. -- FINISHING THE JOB

Twelve years later, in Stute v. P.B.M.C., Inc. , 114 Wn.2d 454 (1990), the Washington Supreme Court completed the work it had started in the Kelley decision, clearly delineating the duties of the general contractor to enforce applicable safety regulations under WISHA. The Court found that under the specific duty clause of RCW 49.17.060(2), a general contractor owes a duty to every employee at the job site, including employees of subcontractors, to comply with all applicable safety regulations. The Stute opinion reaffirmed what had been recognized earlier in the Kelley case:

General contractors have the right of control over those working on the job site and this control gives rise to a duty to enforce safety.

The Court concluded that a general contractor was in the best position to enforce safety on the job site:

The primary employer, the general contractor, has, as a matter of policy, a duty to comply with or ensure compliance with WISHA and its regulations. A general contractor's supervisory authority places the general in the best position to ensure compliance with safety regulations. For this reason, the prime responsibility for safety of all workers should rest on the general contractor.

114 Wn.2d at 463. The Court concluded that the general contractor should bear the primary responsibility with safety regulations because of the control the general has over the work place, as well as to further the purposes of WISHA to assure safe and healthful working conditions for every person in Washington.

The construction lobby as a whole considers the Stute decision as a threat and has repeatedly and vigorously lobbied for legislation to eliminate the case ever since the opinion came down. The core of the industry argument, spoken or unspoken, is that Stute places an unfair burden on general contractors, requiring them to be insurers on construction job sites. Stute has done its job by explaining the duty to provide a safe work site in terms the construction industry can understand: the pocketbook. 

WEINERT v. BRONCO -- DUTY OF THE PROPERTY OWNER

The Washington Court of Appeals made a significant addition to the established responsibility of the general contractor to enforce safety in Weinert v. Bronco National Co. , 58 Wn. App. 692 (1990), bringing in the property owner. The case involved an employee of a siding contractor who was injured when he fell from scaffolding brought on to the job site and erected by his employer. Bronco National Company was the owner and developer of the project. There was no evidence that Bronco "participated in the erection of the scaffolding or had knowledge of the alleged defects in the scaffolding." 58 Wn. App. at 693-694. Bronco claimed ignorance of the safety defects and disclaimed any responsibility for discovering them.

The Court of Appeals flatly rejected Bronco's position, holding that it had a duty to enforce all applicable safety regulations, and that this duty ran to all employees on the premises. It was not significant that Bronco was the owner and not the general contractor:

The owner/developer's position is so comparable to that of the general contractor in Stute that the reasons for the holding of Stute apply here. . . . The basis for imposing the duty . . . exists with respect to an owner/developer who, like the general contractor, has the same innate overall supervisory authority and is in the best position to enforce compliance with safety regulations.

58 Wn. App. at 696. (Similar conclusions were reached by Division I in Kennedy v. SeaLand Service , 62 Wn. App. 839 (1991) and by Division II in Doss v. ITT Rayonier, Inc. , 60 Wn. App. 125 (1991).

Thus, an attorney representing an injured construction worker must examine all entities involved in a construction project from the owner through to the last subcontractor in an attempt to assess responsibility for an injury or wrongful death. This is no easy task.

ACTIVITIES ANALYSIS - PHILLIPS v. KAISER ALUMINUM

Any lawyer handling construction site injuries must ultimately know the microcosm of the work site in great detail, going through a well-laid out analysis of the activities of all the entities involved in the project. A good example of a finely tuned activities analysis is found in the construction site injury case of Phillips v. Kaiser Aluminum , 74 Wn. App. 741 (1994). In that case, the Court of Appeals held that defendant Kaiser Aluminum owed the plaintiff a common law duty of care when he was injured while working for an independent contractor at the defendant's job site. The work being performed by Kaiser was to cut up and remove scrap aluminum at the Kaiser plant. The Court noted in its analysis of the activities performed on the job that Kaiser:

1. Determined that the scrap aluminum would be cut with chain saws.

2. Purchased three new chain saws for that purpose and provided them to the independent contractor's workers.

3. Hired a full-time overseer for the job.

4. Assigned one of its employees to act as contract administrator. This person visited the site at least once a day to make sure that the job was progressing satisfactory.

Seizing upon the control issue mentioned by the Supreme Court in both Kelley and Stute , the Court of Appeals held that Kaiser Aluminum exercised sufficient control over the work to be held to a duty to provide a safe work place.

EFFECTIVE INVESTIGATION AND DISCOVERY IS KEY

Much more so than in any other kind of personal injury case, careful, methodical investigation is key to success. Construction workers typically live in areas far removed from the job site. The presence of the subcontractor employees on a job site may be a fleeting thing. From day to day, the population on any construction site is ever-changing. A worker may finish up on that site one day and be dispatched to another the next, then come back to the original site weeks later. There is rarely any central roster of all the employees that are present on an construction site on any given day.

Consequently, investigation of all construction accidents is unusually time-consuming. There is no substitute for tracking down each and every person that worked on the job site and find out all that they know about it. Some diplomacy is required because the principals who hired the workers are not eager to allow attorney access after an accident. Even with the injured workers own employer, who serves to benefit under the worker's compensation system from any recovery made against other entities on the job site, there is often a political wind against cooperation or disclosure. This is particularly true with regard to the job site owner, who holds the prospect of future construction jobs. The injured workers own employer does not want to appear to be a "stool pigeon" and cooperate with an injured worker's lawyer in providing information that will ultimately find the job site owner responsible. Often there are indemnity and other side agreements that create alliances that are not immediately apparent. Attempts to gain the cooperation of the injured worker's employer are often frustrated by the economics of the industry.

A. Don't Rely On The DLI Investigation.

Unfortunately, the Washington State Department of Labor & Industries has not done anywhere near as good a job as they could in making proactive inspection tours of job sites to enforce safety, or investigation of accidents once workers have been injured or killed. The construction industry uses it's political muscle to put blocks on DLI's ability to effectively investigate. Occasionally, in high profile cases, where there are dramatic incidents such as oil refinery explosions killing multiple workers, a concerted investigation will be conducted by DLI. However, even in these circumstances, there is rarely any investigator on DLI's staff with sufficient knowledge of the particular industry and the work practices involved to make useful findings. More typically, there is a bulk of bureaucratic forms filled out in barely legible handwriting which do not squarely address the root causes of the accident. Further, the witness statements taken by DLI often are indiscriminate including job scuttlebutt, rumor and hearsay, as opposed to observed facts. As a result, any attorney involved in construction accident cases learns very quickly that the DLI investigation rarely provides anything useful other than names and addresses and telephone numbers of potential witnesses. This is the starting point from which the attorney's private investigator must begin.

It can often takes weeks to get the report from the DLI Public Information Office and it may not arrive complete. Physical evidence at the scene is rarely retained by the DLI investigators.

Another problem with DLI investigation reports is that the focus is different from the one needed to effectively represent the injured worker. Usually, DLI investigates to determine if there are WISHA violations by the worker's employer. Although permitted, the DLI investigators often do not investigate for Stute violations by other contractors on the job site.

B. Follow The Paper Trail.

In the modern world, there is a paper trail that accompanies most construction projects. One important source of information concerning the names and responsibilities of those entities involved in a construction project are the building permits in the files of the county officials where the accident occurred. In terms of establishing who was in control of the project, it is important to know who took out the building permits for the work. Plans and contracts may also be on file with the applicable building department. These documents are public records which do not require any court order to obtain copies of. In the serious construction site brain injury to welder Vaughn Vancil, the Pierce County Building Department records indicated that the job site owner, Land Recovery, was the one that took out the building permits and other required government documents. This paper trail of government documents helped to build a solid case of control against Land Recovery in the lawsuit.

On modern construction sites, a good deal of the orders come down through cell phones or e-mail. In times past, orders to perform work would usually be delivered by the foreman present on the job site. Now these orders can come from distant figures through electronic means. Most jobs have computers on site now, although this information has a tendency to disappear even before a job is over. Tracking cell phone calls is a vital part of the investigation. In this way, the connections between key players on a construction site can be established. However, what was said over the cellular phones usually comes back to reliance upon memories of the individuals on the job. E-mail provides a more fertile ground for discovery, in that it may still be available on the hard drive of at least one of the computer involved in the transactions. Not only Microsoft uses computer e-mail. For example in Ramsey v. Worldcom , a review of defendant's retained e-mail traffic showed that Worldcom was constantly directing and monitoring the work on a fiberoptic cable project.

C. Figure Out The Chain Of Command.

The problem in figuring out the chain of command is that the people at the bottom are the ones that usually do the work. However, they do not talk to the people at the top who give the orders in the first instance. The workers actually performing the task only know what the supervisors immediately above them had to say at the time the orders were given. Thus, the investigation involves a backtracking up through the chain of command to find out who gave the orders in the first instance and in what form they were given.

The workers at the bottom of the authority totem pole are usually the ones that are the most accessible to contact through investigation. Yet, these individuals may be the least able to inform the lawyer how the orders that caused the injury came about or who was instrumental in fashioning these orders. Those with the greatest knowledge at the top of the authority totem pole are usually the least willing to talk to an investigator following the accident. This makes access to the available documents on file all the more important, figuring out who had the power of control. The paper trail is a great help on figuring this out.

D. Safety Meetings.

Most employers on construction sites require periodic safety meetings. Often times these are simply done in a perfunctory way without any real effort to educate the workers on the job. In any event, there is usually a record made of who was present and what was discussed. Absence of safety meetings are often critical in establishing failure to inform workers of hazards known to those higher up in the chain of command. For example, in the wrongful death case our office brought after two workers fell to their deaths on the Kingdome roof repair in August, 1994, it was established that several manbaskets being lifted up to the Kingdome roof had hit the ceiling prior to the fatal incident. Yet, nothing was done by the general contractor to create a more reliable, safer signaling system to prevent the recurrence of manbaskets striking the ceiling. The Minutes of the safety meeting of one subcontractor established the known danger of manbasket striking the ceiling. Yet, there was no memo or directive that came out from the general contractor following these incidents to solve the problem. As a result, two men died. Only then did this issue get the undivided attention of the general contractor.

E. Union Contact.

The business agent of whatever union the injured worker belongs to is an invaluable resource. First, the business agent can identify who else was dispatched to the job where the worker got hurt and may be willing to give addresses and phone numbers of these persons. In that the DLI reports are often sketchy and come much later in the game, the business agent may be able to get valuable leads to the lawyer before the trail is cold.

Beyond this, the business agent can also point to the knowledgeable individuals in the union's training program who can help the attorney analyze the causes of the accident. Union training specialists often have not only a wealth of practical experience in the trade, but also access to written materials on what should or could have been done to avoid the specific accident at issue.

Don't forget to look at the union contract which can have clauses that establish obligations for safety on the job site.

F. 30(b)(6) Deposition.

Once a lawsuit is filed, a 30(b)(6) deposition of the defendant should be taken quickly to gain access to all contracts and documents concerning the job. These are also useful in sorting out the indemnity agreements which exist through potential parties to the lawsuit. It is quite common now for the owner of a construction project to require the general contractor and all subcontractors to hold the property owner harmless in the event that a worker is injured. This information is useful to know before going into the lawsuit. Further, the contracts usually set forth the duties of each entity involved in the job are to perform. This can often include explicit safety responsibilities.

However, the contracts are never definitive, in that the parties can modify contractual language by subsequent amendment or performance. This is not at all unusual on construction jobs, where once the job gets going, the parties have to change their working relationship in order to do the work efficiently.

OTHER BASES OF LIABILITY

A. Job Pressures.

It is almost a given that any construction job is going to be under great time pressure. This is particularly true in shut down jobs in places like pulp and paper mills. Every minute the mill is down can be translated into loss of operating revenue by the owner. This usually causes the mill to have its supervisors pushing hard for the work to be done. In this process, inevitability they exercise control over the contractors and subcontractors involved. Pressure to finish the job in a hurry was a key element in finding liability against the Simpson Tacoma Kraft Mill in Voight v. Simpson . In that case, a 25 year old ironworker was crushed by a falling one-ton steel column during the installation of a new pulp and paper machine. Simpson had its own supervisors looking over the shoulder of the installers on an around the clock basis. The Simpson employees acknowledged that they had the power to direct how the work was performed and that Simpson had a strong interest in getting the project done on time.

These job pressures may also lead to another source of potential liability -- the hours worked by the employees. Better construction companies have a set maximum number of hours each employee can work in a 24 hour period. Yet, as job completion pressures grow, this maximum hour limitation is frequently violated, often on a continuing basis. There is a growing body of research which suggests that sleep deprivation leads to greatly increased chances of physical injury. The time records for all employees on a construction job should therefore be checked with scrutiny. In Voight v. Simpson , one of the supervisory companies involved in the construction project had its principals regularly violate the company rules on maximum number of hours worked per day on this job. Similarly, in Truitt v. J. H. Kelly , the plaintiff's serious automobile accident off the job site was directly linked to records which showed that all employees were kept up around the clock for two days.

B. Product Liability.

Construction site injuries can be caused or contributed to by defective equipment. This is particularly true with devices such as mobile hydraulic cranes, which may have been improperly designed by the manufacturer. In the Vancil case, plaintiff was dropped on his head from a height of 30 feet by a P & H mobile hydraulic crane. While the Department of Labor & Industries termed this operator error, in fact the accident was caused in substantial part by a design defect in the crane -- the failure to have an anti-two block device. As it turned out, the hydraulic crane manufacturer became the target defendant in the case due to a group of "smoking gun" product liability documents discovered later with great effort.

If, on the other hand, a product failure on the job is not due to defective design, but rather improper or inadequate maintenance of the equipment, a different approach may be called for. Rather than suing the equipment manufacturer, the wiser course may be to make an alliance with the manufacturer, proving that parties responsible for safety failed to follow manufacturer's recommended servicing of the equipment. In such a case, the manufacturer is far better as an ally, than a defendant. In all construction site injuries, the attorney needs to make a very careful analysis of all potential defendants under Washburn . In that case, a contractor was held almost entirely responsible for an $8 million verdict, despite the statute of repose, because it added a finish coat of tar to a natural gas pipeline. Conventional wisdom would have said there was no lawsuit possible against the contractor.

EXPERTS

Selection of the right expert is a particularly difficult hurdle in construction litigation. Most major construction companies have in-house safety supervisors. None of these individuals will voluntarily speak to an attorney representing an injured worker, even if it is against another company. This is seen as fraternizing with the enemy. While some colleges or universities have construction management programs, these often do not focus on the safety aspects of construction management. There are some retired DLI inspectors available, but these individuals may not have the insider knowledge to sort out the key events which led to the injuries or the death. L & I inspectors are very good at knowing the requirements of the code, but not necessarily about realities of how the work is performed on multiple employer job sites. Further, DLI pursues a policy of usually only citing up the injured or dead construction worker's employer and not the job owner or the general contractor under Stute . This is a directive given to DLI by the Washington Attorney General's Office.

Ideally, any expert retained should have a feel for who has control on the job site. This can either be explicit in the form of a paper trail or other tangible orders, or implicit -- holding the club "of control" without having to swing it to get results. As the courts have consistently pointed out, control does not need to be actually exercised in order to exist.

KNOWLEDGE OF THE WASHINGTON ADMINISTRATIVE CODE

Section 296 of the Washington Administrative Code (WAC) sets forth specific safety regulations to be followed by parties on construction sites. Since Kelley specifically cites obligations under WISHA as a basis for a duty to provide a safe workplace once the attorney knows the basic facts of the construction process, then a review of all sections of the Occupational Safety & Health provisions of the WAC is helpful. A laundry list should be made of all those provisions that have been violated. The DLI report of an accident is usually helpful in terms of identifying the specific areas of the code that have been violated. But this is not always true. For example, in Ramsey v. Worldcom , the DLI investigator wrote up the decedent's employer for a WISHA violation which would not have helped preserve the worker's life, but rather would have only have further se ale d his doom. In that case, the decedent's heavy equipment broke through a railroad bridge near Ellensburg. The DLI investigation wrote up the employer for failing to have a seat belt on the heavy equipment involved. In fact, the decedent was desperately trying to dismount the Caterpillar tractor before it went through the bridge. The DLI investigator failed to cite the employer for the sections of WISHA that mattered the most -- having a fall protection plan at work and requiring that heavy equipment be taken over safe routes on the job site. So the attorney should not presume that the DLI inspector has utilized the most pertinent sections of the WAC on Occupational Safety & Health.

CONCLUSION

Despite a progressive series of decisions by the Washington State Supreme Court to protect the safety and health of construction workers in our state, this dangerous form of work continues to claim the lives and health of a number of Washington workers every year. In most of these circumstances, the injuries or death were foreseeable and preventable. However, some variation of the construction industry "business as usual" mentality and pressure to get the job done quickly causes these safety requirements to be overlooked.

Construction injury litigation provides a vital lifeline to Washington working families, in that construction site injuries often tend to be serious ones. It seems that the only way the industry will ever clean up its act is if it's forced to pay fair compensation when it causes serious injuries of construction workers. The industry as a whole strongly resists the responsibility placed upon it in the Kelley and Stute decisions, instead focusing lobbying efforts on trying to legislatively abolish these vital protections. There is the hope that if the construction industry can no longer regard working men and women as fungible and easily replaceable, perhaps greater concern for their safety and well-being will result. The courts have given the trial attorney a powerful weapon to preserve and protect human life on construction sites, acting as a policeman to protect those that work there.

Cox v. PCI , King County , No. 97-2-04401-4 SEA ; Gilbert v. Land Recovery, Inc. , Pierce County Sup. Ct. , No. 94-2-02761-7; Washburn v. Beatt Equipment , 120 Wn.2d 246 (1992); Beatty v. United States of America , U.S.D.C., E.D., WA, No. CS-95-115-JLQ; Turincio v. Ness Cranes , U.S.D.C., W.D., WA, No. C95-306Z; Truitt v. J. H. Kelly Constr. , Lewis County Sup. Ct. , No. 92-2-00983-6; Voight v. Simpson , Pierce County , No. 96-2-06552-3.

Pierce County Sup. Ct. , No. 94-2-02761-7.

U.S.D.C., E.D., WA, No. CY3008-EFS.

Turincio v. Ness Cranes , U.S.D.C., W.D. WA, C95-306Z.

Pierce County Sup. Ct. , No. 96-2-06552-3.

Lewis County Sup. Ct. , No. 92-2-00983-6.

See , e.g., Esparza v. Skyreach , King County Sup. Ct. , No. 96-2-28794-6 SEA

U.S.D.C., E.D., WA, No. CY-3008EFS.

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