ConstructionPro Week, Volume: Construction Advisor Today - Issue: 152 - 03/30/2012

Must Job Site Safety Responsibility Impose Unbearable Liability Exposure?

By Bruce Jervis

Maintaining job site safety is an extremely important function. It is also a role no one wants. Assignment of that responsibility under the contract documents is viewed – and rightly so – as a lightning rod for litigation. Someone needs to coordinate safety on the overall project, but at what cost in liability exposure?

 

A recent Indiana case seems to suggest an answer. The construction manager on a large public works project had extensive responsibilities administering the safety program. The CM monitored contractor compliance, conducted weekly safety meetings and daily inspections, and reported noncompliance to the project owner.
 
The contract documents made it clear, however, that the CM had no control over the contractors or their employees. The CM’s services were provided solely for the benefit of the project owner. The contractors, who had contracted directly with the project owner, were the controlling employers of their workers.
 
The Indiana Supreme Court said this was a good way to promote safety on large public works projects. The CM could administer the project safety program in a comprehensive manner on behalf of the project owner without being exposed to claims from injured workers.

Do you think this is a reasonable compromise? Or is this yet another example of construction contract documents establishing something and then disclaiming responsibility for it? Should any party that exercises control over safety practices be entirely exculpated from liability for its performance of that function? I welcome your comments.

Featured in Next Week’s Construction Claims Advisor:

  • Contractor Worked Without Change Orders to Avoid Liquidated Damages
  • Contract Mods Included Cumulative Labor Inefficiency
  • Idle Equipment Costs Absorbed Over Entire Period of Suspension

 

 

Comments

In the contract for the project I am working at, Safety is one of the established triggers to stop the works. If it can be proven that the Safety Team did not do enough, he should be accountable. A root cause analysis should provide enough insight to identify who is responsible if there is one.

What is the name of the case? These cases and potential liability are very fact specific. Thanks.

This is not a compromise, but an unreasonable shifting of liability. Job site safety is not wholly separable from the general management of construction. CM's have many factors which drive their planning and day to day decision making. The safety consequences of that process need to remain squarely with the CM as well as the individual contractors.

This seems to be an agency CM basis point of discussion(law). CM at risk may well be different as that CM is a controlling Construction Manager, not owner staff supplementation. The author could help with a distinction; or is there none? Someone has a responsibility to provide a safe worksite and on a multi-employer site there must be a top dog and that entity should have control authority of the site and control authority leads to responsibility. Is there any other way?

Two-bits from Canada. For a multi-employer workplace there is a requirement for Prime Contractor. who is responsible for site safety coordination. In many cases the owner will take this responsibility or assign it to their General Contractor.

All Contractors have the responsibility to ensure their work is safe and ensure safety of their workers.

I believe that someone needs to take ultimate responsibility such as in a wrap program but that during the pre-qualification process for subcontractors it must be made clear that it is a collaborative effort. You "own" the site? ... then you "own" what happens on it to the extent that has been determined by the jurisdiction governing your site and the nature of your work. How deep and substantive that is seems to be shifting depending on the jurisdiction.

 

COMMENTS

 









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