Fury Bailey - Personal Injury - Wrongful Death Attorneys

THE INS AND OUTS OF CONSTRUCTION SITE INJURY LITIGATION

By William S. Bailey

Fury Bailey

710 – 10 th Avenue East

Seattle , WA 98102

(206) 726-6600

billb@furybailey.com

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 jobs done.

2. An industry tradition of only giving lip service to safety.

3. Unclear lines of authority for safety on the job.

4. Weak or inconsistent state safety inspections.

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

6. Constant movement of heavy building materials.

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.

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.

VITAL ROLE OF WASHINGTON COURT DECISIONS

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 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 provide the economic incentive for construction businesses to realize that “safety pays.”

The Washington State Supreme Court took a giant step forward making construction sites safer in Kelley v. Howard S. Wright by holding that the general contractor is liable for injuries to employees of independent contractors by having control over their work. Beyond control, the Court held that the inherently dangerous nature of construction work was another reason to impose a duty of care on the general contractor.

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 a general contractor owes a duty to every employee at the job site to comply with all applicable safety regulations.

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 Court of Appeals flatly rejected the property owner's claim of non-responsibility, holding that it had a duty to enforce all applicable safety regulations, and that this duty ran to all employees on the premises.

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 successful activities analysis is found in the construction site injury case of Phillips v. Kaiser Aluminum , 74 Wn. App. 741 (1994).

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.

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 resourcefulness is required because employers are not eager to allow attorney access to their workers on the job.

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. Typically, DLI compiles a bulk of bureaucratic forms, filled out in barely legible handwriting, which do not squarely address the root causes of the accident. Physical evidence from the scene is rarely retained by the DLI investigators. 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.

Another problem with DLI investigation reports is that its investigators often do not investigate for Stute violations by contractors other than the injured worker's employer 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 on control of a project are the building permits on the file for the job. These documents are public records. 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. This paper trail helped to build a solid case of control against Land Recovery in the lawsuit.

On modern construction sites, orders come from distant figures through cell phones or e-mail. Reconstructing the content of cellular phone calls usually comes back to reliance upon memories of the individuals on the job. Consequently, e-mail provides a more fertile ground for discovery. 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. 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. This makes access to the available documents on file all the more important in figuring out who had the power of control.

D. Minutes Of 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. 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. The Minutes of the safety meeting of one subcontractor established the known danger of manbasket striking the ceiling. 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.

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. 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 liability issues.

F. 30(b)(6) Deposition.

Once a lawsuit is filed, a 30(b)(6) deposition of the defendant(s) should be taken quickly to gain access to all contracts and documents concerning the job. These documents are also useful in sorting out the indemnity agreements which exist through potential parties to the lawsuit, as well as the duties of each entity involved on the job.

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. 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. The Simpson supervisors 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 -- extending the hours worked by the employees in a 24 hour period. 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.

JOINT AND SEVERAL LIABILITY

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. Ideally, any expert retained should have an industry background which allows for an accurate assessment who has control on the job site.

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 the duty to provide a safe workplace, 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 not necessarily helpful in this effort. For example, in Ramsey v. Worldcom , the DLI investigator wrote up the decedent's employer for a WISHA seat belt violation on a Caterpillar truck which would not have helped preserve the worker's life, but rather would have only have further sealed his doom. 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.

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 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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