Construction accidents often result in catastrophic or fatal losses. Furthermore, construction accidents invite Occupational Safety and Health Administration (OSHA) investigations, which may lead to citations for safety violations and have significant impact on the way claims professionals handle the losses. OSHA investigations provide large amounts of quality data, but accessing the information can be an arduous task with varying success rates. While court decisions are key, finding precedents is a challenge since rulings vary from jurisdiction to jurisdiction. With all this in play on construction accident claims, adjusters will find knowledge of OSHA procedures and regulations necessary and eminently helpful.
One of the first areas of inquiry should be whether or not there was an OSHA investigation as a result of the accident in question and, if so, whether or not it resulted in the issuance of a citation. In order to cite a general contractor with a violation, OSHA must prove that the employer failed to comply with an applicable standard or the general duty clause, that employees had access or were exposed to the offending condition, and that the employer had actual or constructive knowledge of the offending condition.
OSHA (generally under 29 CFR 1900 et seq.) imposes many requirements upon an employer. They broadly include: specific standards, training, hazard assessments, hazard communications, tool maintenance, accident reporting, record-keeping, record access, OSHA survey, hazard abatement and the general duty clause. OSHA’s Field Operations Manual
is a lengthy but valuable source of information for all that is OSHA. Claims professionals can also search accident investigation summaries and basic inspection information (including whether or not citations were issued) at www.osha.gov/pls/imis/accidentsearch.html
Liability Under the General Duty Clause
Claims professionals should be aware that plaintiff’s counsel will attempt to use an OSHA citation, standard and/or regulation to prove liability against general contractors. If unable to cite a specific OSHA regulation or standard, plaintiff’s counsel will inevitably turn to the general duty clause to support the proposition that the general contractor owed a non-delegable duty of care to the plaintiff.
In Title 29 of the U.S. Code Annotated § 654, “Duties of Employers and Employees,” the general duty clause states that “each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees and shall comply with occupational safety and health standards promulgated under this chapter.” Furthermore, “each employee shall comply with occupational safety and health standards and all rules, regulations and orders issued pursuant to this chapter which are applicable to his own actions and conduct.”
It is important to remember that a “general duty citation must involve both the presence of a serious hazard and exposure of the cited employer’s own employees…. Whether or not exposed persons are employees of an employer depends on several factors, the most important of which is who controls the manner in which the employees perform their assigned work…. The general duty clause shall be used only where there is no standard that applies to the particular hazard and in situations where a recognized hazard is created by, or in part by, conditions not covered by a standard,” according to the Field Operations Manual
When OSHA investigates a multi-employer worksite, as is the norm on a mid- to large-sized construction site, the investigator must first determine if the employer is a “creating, exposing, correcting or controlling employer.” It is important to note that each classification of employer has its own OSHA exposure and, in certain circumstances, may be cited even if those who are exposed to the hazardous conditions are employees of other employers.
Use of OSHA Investigation Data
OSHA investigations are typically thorough and produce a wealth of information that can be used by claims professionals to assess liability and/or damages. An OSHA inspection record includes official forms, original field notes, photographs, videotapes, DVDs and audiotapes. Also, OSHA investigators are supposed to obtain statements via interviews and/or administrative deposition.
Once an OSHA investigation concludes, a claims professional should make a Freedom of Information Act (FOIA) request for all disclosable records relative to a loss. “The information obtained during inspections is confidential but may be disclosable or non-disclosable based on criteria established in the Freedom of Information Act,” says the Field Operations Manual.
An FOIA request must be made in writing and should include as much descriptive information as possible. Upon receipt of a request, a government agency must disclose the documents unless it can demonstrate that such documents may be withheld under one of nine exemptions in the U.S. Code, which include classified matters of national defense or foreign policy; internal personnel rules and practices; information specifically exempted by other statutes; trade secrets, commercial or financial information; privileged interagency or intra-agency memoranda or letters; personal information affecting an individual’s privacy; investigatory records compiled for law enforcement purposes; records of financial institutions; and geographical and geophysical information concerning wells.
Claims professionals are cautioned not to be overly optimistic about the response from OSHA after sending a FOIA request. OSHA will typically claim that the most sought after items, such as interview statements, are exempted from FOIA requests and/or fall within the protections of the “informant privilege.” For instance, in Culinary Foods v. Raychem
, the court noted that “[t]he privilege is applicable in civil as well as criminal cases. In the context of OSHA investigations, the informant’s privilege is likewise necessary. Because of the significant policy interests, the government need not make a threshold showing that retaliation is likely to occur in order to assert the privilege. Rather, the privilege is granted as of right.” However, the informant’s privilege is not absolute. The court also said, “Only documents which tend to reveal the identity of an informer are protected under the privilege. In addition, the privilege will yield when the identification of the informant or of a communication is essential to a balanced measure of the issues and the fair administration of justice.”
Significance of OSHA Investigations in Court
An OSHA violation may have significant impact on claims litigation, and the jurisdiction in which suit is brought can be critical. The Gulasky v. Ingram Barge Co. court noted that federal circuits are divided as to whether or not an OSHA violation constitutes negligence per se in general, with a few circuits having found that it amounts to negligence per se under a state law standard. Most circuits, however, have held that an OSHA violation is not negligence per se.
Many state courts are willing to allow the introduction of OSHA violations as some evidence of the employer’s negligence. Some jurisdictions have held that a violation of an OSHA regulation may constitute “negligence per se” provided certain circumstances are satisfied. Typically, the regulation must clearly define the required standard of conduct; the plaintiff must be within the intended class of persons to be protected by the regulation; and, that the harm suffered was of the kind intended to be prevented by the regulation. Some jurisdictions to be wary of in this regard include Georgia, Idaho, Iowa, Minnesota, Tennessee, Washington state and Washington, D.C.
Other jurisdictions have held that a fact finder may consider OSHA regulations for the purpose of establishing the standard or duty of care owed by the employer. West Virginia and Illinois courts have held that compliance with OSHA regulations is competent evidence of due care but does not constitute due care per se or create a presumption of due care.
With the variations in court dispositions, the complexities in regulations and the challenges in obtaining OSHA information from investigations, claims professionals might benefit from auxiliary experts. They certainly can expect to encounter expert witnesses for the plaintiff.
Timothy J. Smyth is an attorney at Burns & Farrey in Boston. He represents corporate and individual clients in state and federal courts.A former assistant district attorney, he has the unique combination of being both an experienced trial and appellate advocate.