Verdicts & Settlements - Settlement for Injured Construction Worker

New Jersey Personal Injury Attorneys Win $650,000 Settlement for Injured Construction Worker

Gerald H. Clark of the New Jersey personal injury law firm of Keefe Bartels Clark achieved a $650,000 settlement for a construction worker who suffered an ankle fracture when he fell from a ladder on a construction site. The following is a detailed summary of the case and liability theroy which resulted in this favorable personal injury settlement.

Background:

This incident occurred on December 18, 2006 at a construction site of a Quick Chek Store/Gasoline being built at 1 Cliffwood Avenue in Matawan, New Jersey. The owner/general contractor at this site was Quick Chek. Quick Chek acquired the design and architectural plans, hired contractors, inspected and approved the work, and paid the contractors. Quick Chek hired Britland Construction to build the Quick Chek building. At the time of this incident, Mr.Reis was employed by AGF Home Builders as a carpenter. He was sheathing the Quick Chek building. AGF Home Builders was hired by Britland Construction. Britland Construction had previously built 20 to 25 buildings similar to the building where Mr. Reis was working at the time of his injury. Quick Chek also hired J.A. Neary Excavating to perform the site work. The work of J.A. Neary Excavating involved excavations related to draining near the building where Mr. Reis was working. Quick Chek hired Michael Marra, Inc. to perform work related to the gas station including the pump and tank installation as well as construction of the canopy. Thomas DeVries of Britland Construction oversaw the work of AGF Home Builders and other contractors at this site.

Prior to the time of this incident, a trench had been dug by J.A. Neary Excavating alongside of the building where sheathing work was to take place. Deposition testimony indicates that workers of AGF Home Builders were being pressured to get the job done as soon as possible by Rich Britland due to scheduled framing/sheathing inspections.

Description of Incident

Just prior to this incident, Mr. Reis had placed a ladder near the excavation. He placed it there to get the proper slope for safe climbing. He thought he had placed the ladder in a safe place. He customarily carries four by eight sheets of plywood while climbing the ladder and then installs the plywood to the studs on the side of the building. He testified that the building was approximately 20 feet high. He was installing plywood at about the 12 foot level. He thinks the ladder was at approximately 16 feet above ground. He was about three rungs from the top of the ladder when he fell. He fell when the bottom of the ladder slipped out and went into the excavation. He fell and was seriously injured.

Methodology of Evaluation:

The method to evaluate the conduct of Britland Construction, J.A. Neary Excavating and Quick Chek in this case is to compare their conduct to the principles and practices of construction safety management established by industry safety authorities. It will also compare their conduct to compliance with regulations of the Occupational Safety and Health Administration and the American National Standards Institute.

Magnitude and Severity of Falls in the Construction Industry:

OSHA has found that, between 1985 and 1989, the leading cause of fatal injury in the construction industry has been falls from elevation. Falls account for 33 percent of all construction fatal injuries in the United States.

Fall injuries account for 45 percent of fatal injuries in the construction industry in New Jersey according to research done recently by the New Jersey Department of Health.

The Bureau of Labor Statistics found in 2004 that deaths from falls from roofs increased 39 percent and deaths from falls from ladders increased 17 percent. A total of 1,224 workplace deaths occurred in construction activity in 2004 (www.bls.gov).

Falls in the construction industry are not a new phenomena. Dr. Steward Beyer, Ph.D. reported in Industrial Accident Prevention in 1916 the following: “Contracting is generally considered a hazardous industry, and accident statistics support this impression; 97, or slightly more than 20 percent of the total of 474 fatal accidents occurring in Massachusetts during one year, were in the contracting industry. Thirty-one (31) percent of the 97 involved falls.”

"Falls are the leading non-automotive cause of accidental death in America, accounting for something over 15,000 fatalities per year." (Source - William English, Pedestrian Slip Resistance: How to Measure It and How to Improve It, Second Edition, 2003, p. vii.)

"Falls from elevation are the leading cause of disabling and fatal injury in construction." (Source - D. Herbele, Construction Safety Manual (1998), p. 263)

OSHA has estimated that compliance with the current residential fall protection standards will prevent 22 fatalities and 15,600 injuries annually, while saving employers over $200 million in wages and productivity losses, medical costs, administrative expenses and other costs associated with accidents. (Source: Joseph Dear, Assistant Secretary of Labor, in correspondence to Congressman John Linder, May 8, 1995)

"The three leading causes of death for construction workers were falls (25 percent), electrocutions (15 percent), and motor vehicle-related accidents." (Source - S. Kisner and D. Fosbroke, "Industry Hazards in the Construction Industry", Journal of Occupational Medicine [Volume 36, No. 2], February 1994, pp. 137, 140)

Hispanic Workers at Higher Risk for Workplace Injury and Death

The Center for Disease Control published in Morbidity and Mortality Weekly Report, June 2008 that Hispanic workers face a far greater chance of being killed in the workplace than any other demographic group. Nearly one-third of fatal work injuries in construction occurred among Hispanic workers. Thirty-four percent of Hispanic workers’ deaths from 2003 to 2006 occurred in the construction industry. Falls have emerged as an increasing cause of work-related injury and death among Hispanics, particularly in construction. The number of Hispanic worker deaths from falls increased 370 percent between 1992 and 2006, the CDC report noted. (National Safety Council, OSHA Up-To-Date, Volume 7, No. 8, August 2008)

Industry Standard for Injury Prevention in the Construction Industry: Safety Management Principles and Practices

The following is a brief review of the industry standard or standard of care relative to injury prevention in the construction industry. For decades, both industry authorities and government authorities have been in agreement with regard to the steps that construction managers and contractors should take in order to ensure that work performed on their behalf is done safely and in compliance with OSHA.

a. Principles and Techniques of Construction Safety Management

A review of the construction safety management literature will find fundamental agreement with the following principles:

Safety begins at the top.
Assignment of specific responsibility and accountability are key to successful construction safety management.
Safety begins in the design stages - on the drawing board.
Safety is a shared responsibility.
A proactive rather than reactive approach is best.
Accidents are foreseeable and predictable.
Controls can be anticipated and put in place before exposure to the hazard takes place.
Planning is essential.
It is irresponsible to allow the evolution of a hazard and hope that safety inspection discovers the hazard before injury results.

These principles and techniques of injury prevention have been applied for many years. Likewise, over 36,000 members of the American Society of Safety Engineers, that is, representatives from the construction industry, general industry, the insurance industry, government and labor are also in agreement with these principles and techniques of safety management and have been applying them for decades. Safety experts have written on the subject of the appropriate methodology of evaluation in construction industry cases in peer-reviewed articles including in the Journal of the American Society of Safety Engineers. There is no disagreement regarding these principles and techniques of construction safety management among construction safety experts

b. American National Standard for Construction and Demolition Operations - Safety and Health Program Requirements for Multi-Employer Projects ANSI A10.33-1992.

The Secretariat for this standard is the National Safety Council. It was promulgated in 1992. It establishes the minimum procedures that responsible owners and general contractors are required to comply with on a multi-employer construction site. The provisions contained in the ANSI standard are a composite of the most effective policy and program elements taken from examples provided by industry. The organizations represented by this standard are many of the most important organizations involved in the construction industry in the United States. They come from construction companies, insurance companies, labor organizations, governmental organizations, construction safety consultants and many major construction contractors.

ANSI has found that investigation of major construction failures and individual injuries indicate that in a majority of instances, the lack of coordination between owner, construction manager, general contractor and/or subcontractor was a primary contributing factor. The ANSI standard points out: "In addition, studies by Stanford University and the Business Roundtable (an association of the 200 largest corporations in America) have established that designation of a single individual to have overall authority and responsibility for the execution of a construction project is essential to ensure the safety of the employees and quality of workmanship." The requirements of this standard are essentially the same as those requirements established by previous authorities, such as the Associated General Contractors of America, the National Safety Council, the Construction Industry Institute and the Business Roundtable.

The Forward of this standard states: “Investigation of major construction failures and individual injuries indicate that in a majority of instances, a lack of coordination between the owner, construction manager, general contractor and/or subcontractor was a primary contributing factor. … This standard is a basis for each owner and contractor to use as a minimum program in developing and implementing safe, cost effective construction projects. … It is expected that this standard will find a major application in industry, serving as a guide to contractors, labor and equipment manufacturers.” The organizations represented include safety organizations, many major contractors, international unions, employer organizations and representatives of the federal government agencies. The following are some of the provisions of this standard:

2. Definition. Project Constructor. A person, firm, or corporation, i.e., the construction manager, general contractor, prime contractor, or other entity, designated in the project documents, responsible for supervising and controlling all construction work performed on the project.

This standard requires the Project Constructor to implement an occupational safety and health program. This includes pre-work planning including hazard analysis before work begins. It requires training of supervisory personnel as well as monitoring of the job site by a competent person to identify hazardous conditions. It sets forth specific responsibilities of the Project Constructor which include developing, implementing, monitoring and enforcing the job site safety and health program.

c. Associated General Contractors of America

Since 1927, the Associated General Contractors of America have published their MANUAL OF ACCIDENT PREVENTION IN CONSTRUCTION. The primary objective of the Manual is to ensure effective control of accidents in the construction industry. They point out in their 1972 Edition of this Manual the following: “There must be recognition of the fact that control of accidents is the result of management and employees working together for a common objective. The leadership for such an effort must, however, originate with management. The degree to which management accepts this responsibility will determine the success or failure of the entire program.”

They state in Chapter 1 - Accident Prevention Organization: “The basic functions of any management are planning and controlling ... Failure, in too many instances, to give sufficient attention to planning and controlling is largely responsible for high frequency rates.” In Chapter 1, they further point out the need for assignment of responsibility and accountability of management personnel. They state: “Supervisory personnel assigned to the job should confer as soon as practical, review initial planning, discuss any condition changes, and accordingly, alter safety plans. Further, it should be determined that procurement of safety needs has been provided for, that safety policies and procedures applicable to the work are reviewed, and that authority and responsibility have been clarified.” With regard to subcontractors, they point out: “Coordination between the accident prevention activities of the subcontractors and those of the prime contractor is a must, if the objectives of accident frequency reduction and lower costs are to be achieved.”

Safety Inspections

In Chapter 1, they state: "Day-by-day, hour-by-hour, job inspections should be made and a list of violations noted for use and discussion at the next safety meeting of supervisors after corrections have been made. Along with the normal daily surveys of the supervisors, a safety committee should tour the job site to confirm or add to the list of unsafe acts already noted."

d. National Safety Council

Accident Prevention Manual for Industrial Operations:

The National Safety Council is considered by construction safety management professionals as a highly authoritative source for guidance in safety matters. In Chapter 2 of their ACCIDENT PREVENTION MANUAL FOR INDUSTRIAL OPERATIONS, it sets forth guidelines for controlling hazards in the construction industry. It has been available since at least 1969. In their Manual, they point out:

The importance of insisting upon contractor compliance with all safety and health regulations.

The need for advanced analyses and planning for safety.

The need for a preconstruction safety conference.

The need for periodic safety meetings during which plans are made for anticipating hazards associated with work so that controls can be put in place before the hazard evolves.

Essential to the principles established by the National Safety Council is the principle that all accidents are foreseeable, predictable, avoidable and preventable. Construction safety management should be proactive rather than reactive. That is, plans should be made to predict the hazards and to install the controls before the hazard evolves. This is a proactive approach. It is far more dependable than a reactive approach which would depend upon safety inspection to identify the hazard. Serious injury or death could result before the hazard is identified through safety inspection.

The National Safety Council further points out the importance of “assignment of responsibility” and “accountability” as key elements in a construction safety management program.”

Core Safety Materials for the Construction Professional:

A Manual entitled “Core Safety Materials for the Construction Professional” has been prepared by the National Safety Council’s Construction Division. In it, it gives guidance regarding the elements of an effective construction site-specific safety plan:

Introduction: An effective safety plan should get its start during the bid process. The owner should require the development of a pre-construction analysis by all successful bidders. The general contractor/project management team should take the lead in the developing process. All subcontractors - both first and second tier subs - should be invited to an initial meeting and encouraged to participate in the process.

Construction Management Responsibility:

a. Plan safety into the project.

Comply with owner’s safety requirements and local, state and federal regulations.
Establish minimum safety history requirements (e.g. last five years, EMRs, OSHA inspection history, etc.) for all project contractors.
Investigate, and pre-qualify as acceptable bidders, contractors who meet the pre-determined safety history requirements.
Establish and incorporate into contract documents the requirement for a Project Specific Safety and Health Plan to include:
1. Construction process plan.
2. Hazard analysis.
3. Permit system.
4. Designated project safety coordinator/administrator.
  This document goes on to give guidance with regard to owners, general/prime contractors and subcontractors which is essentially the same as all of the other industry standards and authorities.
5. Construction Industry Institute

The Construction Industry Institute is an association of major general contractors/construction managers and major corporations in the United States. The Construction Industry Institute participates with leading universities in the United States. They funded research which resulted in the publication of a document entitled “Managing Subcontractor Safety”, Publication 13-1, February 1991. The purpose of the CII Safety Task Force research was to identify the primary means by which general contractors influence the safety performance of their subcontractors ... The goal was to add to the body of knowledge so that effective measures can be implemented to reduce the cost of accidents.

Conclusions of CII Explained in “Managing Subcontractor Safety”

Task Force research shows that, where subcontractor safety is concerned, the role of project managers is very important. On large and small projects alike, emphasizing safety and providing quality coordination have a favorable impact on the safety of subcontractors. On small projects, subcontractor safety performance also was influenced by the quality of the project management existent on the job and the degree to which workers were dealt with in a humanitarian or personal manner ... Since the general contractors have a significant influence on their subcontractors, owners too will have an influence on the safety performance of the general contractor and subcontractor. Thus, it can be inferred from the results of this study that owners also play a major role in construction safety (emphasis added). Guidelines for Managing Subcontractor Safety on Construction Projects

The following is a brief summary of the guidelines set forth by CII.

They point out the importance of selecting subcontractors by evaluating their safety performance when evaluating bids.
The contract should be detailed relative to how safety will be managed and reported. As a minimum, the scope of work should include requirements for a “Safety Plan”, including such information as safety inspection, enforcement, safety staffing, permit required, preemployment testing, substance abuse testing, safety meetings, personal protective equipment required, ... basic safety training ...
Pre-job safety conference to set forth safe procedures, training requirements and a schedule to discuss safety performance and training programs.
Periodic safety progress reviews between managers and subcontractor safety representatives.
Managers should conduct their own safety inspections of the subcontractor’s work site, and a review of the inspection findings should take place at the periodic meetings.

Safety Rules - Enforcement Procedure

There must be a procedure for enforcing safety rules. This procedure should be written, and should be enforced equally among supervisors, managers, workers and other parties on the site. It should spell out what situations will result in immediate discharge and what actions will be taken on the first, second or third incidents involving violations of a less serious nature.

American Society of Safety Engineers:

In their book entitled CONSTRUCTION SAFETY MANAGEMENT AND ENGINEERING, the American Society of Safety Engineers gives guidance to general contractors with regard to the need to verify that contractors and subcontractors' employees have been properly trained relative to safety. They state: "Every new project will have distinct and different tasks that must be completed. Safety programs need to be tailored to meet the needs of different job sites … Each new project should also develop its own safety training program … Making sure that subcontractors' employees are trained before they are allowed to work on the job site is the best way that the general contractor has of ensuring that all employees on the site have received at least the minimum training required … Review contractors’ documentation for completion of training before they mobilize on site. Be clear that training requirements will be checked before a task is started. In the absence of documentation, personnel will not be permitted to perform work. Among other tasks, special training is required for:

Workers who work six feet or more above ground level.

Workers who use ladders.

U.S. Department of Labor, Occupational Safety and Health Administration

OSHA recognizes the need for the general contractor to take reasonable steps to ensure that their work is done safely and in compliance with OSHA regulations by contractor and subcontractor workers.

OSHA Standard Interpretation 1926.32 Addressing Competent Persons at Construction Sites:

OSHA requires that all employers, general contractors, contractors and subcontractors employ OSHA competent personnel to perform safety inspections as part of their safety program. On August 31, 1995, OSHA gave a clarification regarding 1926.32 addressing competent persons at construction sites. The following is excerpted from that interpretation:

"A legal principle relevant is that … the general contractor normally has responsibility to assure that the other contractors fulfill their obligations with respect to employee safety which affect the entire site. The general contractor is well suited to obtain abatement of hazards, either through its own resources or through its supervisory role with respect to other contractors. It is therefore reasonable to expect the general contractor to assure compliance with the standards insofar as all employees on the site are affected. Thus we will hold the general contractor responsible for violations as could reasonably be expected to prevent or abate by reason of its supervisor capacity (Blount Int'l Ltd., 15 BNA OSHC 1897, 1991-93 Cch OSHD 29, 854 (No. 89-1394, 1992).

"On the other hand, the Occupational Safety and Health Review Commission also noted in that decision that the duty imposed on a general contractor is a reasonable one and that the general contractor will not be held liable 'for violations which it could not reasonably be expected to detect or prevent' … In addition to whatever responsibility it may have as an exposing employer, the general contractor would also share responsibility for those violations by its subcontractors which it could reasonably have protected and had corrected. We would expect general contractors to take the steps necessary to satisfy themselves that subcontractors engage in activities which call for the involvement of competent persons will fulfill that obligation as well as the general inspection obligation imposed by 1926.20(b)(2)."

OSHA also recognizes the overall responsibility of the contractor at the top in the Code of Federal Regulations.

29CFR1926.16(a) “... In no case shall the prime contractor be relieved of overall responsibility for compliance with the requirements of this part for all work to be performed under the contract.”

29CFR1926.16(b) “... The prime contractor assumes all obligations prescribed as employer obligations under the standards contained in this part, whether or not he contracts any part of the work.”

29CFR1926.16(c) “... Thus, the prime contractor assumes the entire responsibility under the contract and the subcontractor assumes responsibility with respect to his portion of the work. With respect to subcontracted work, the prime contractor and any subcontractor or subcontractors shall be deemed to have joint responsibility.”

29CFR1926.16(d) “... Where joint responsibility exists, both the prime contractor and his subcontractor or subcontractors, regardless of tier, shall be considered subject to the enforcement provisions of the Act.”

The above OSHA regulations, 1926.16(a) through (d), could not be cited by OSHA since they set forth a “philosophy of safety management.” This philosophy of safety management guides OSHA’s Multi-Employer Workplace Policy which considers four types of employers: the Controlling Employer, the Creating Employer, the Correcting Employer and the Exposing Employer. When there is a violation of a particular standard related to a particular hazard, OSHA is required to issue allegations of violations to entities which meet the definition of the four types of employers that is expressed in OSHA’s Multi-Employer Workplace Policy.

The following are the OSHA standards relevant in this case:

29CFR1926.20(b)(1). It shall be the responsibility of the employer to initiate and maintain accident prevention programs as may be necessary to comply with this part.

29CFR1926.20(b)(2). Accident prevention programs shall provide for frequent and regular inspections of the job sites, materials, and equipment to be made by competent persons designated by the employers.

29CFR1926.31(f). Competent person means one who is capable of identifying existing and predictable hazards in the surroundings or work conditions which are unsanitary, hazardous, or dangerous to employees, and who has authorization to take prompt, corrective action to eliminate them.

29CFR1926.21(b)(2). The employer shall instruct each employee in the recognition and avoidance of unsafe conditions and the regulations applicable to his work environment to control or eliminate any hazards or other exposures to illness or injury.

29CFR1926.1053(b)(4). Ladders shall be used only for the purpose for which they were designed.

29CFR1926.1053(b)(6). Ladders shall be used only on stable and level surfaces unless secured to prevent accidental displacement.

29CFR1926.1053(b)(21). Each employee shall use at least one hand to grasp the ladder when progressing up and/or down the ladder.

29CFR1926.1053(b)(22). An employee shall not carry any object or load that can cause the employee to lose balance and fall.

29CFR1926.1060(a). The employer shall provide a training program for each employee using ladders and stairways, as necessary. The program shall enable each employee to recognize hazards related to ladders and stairways, and shall train each employee in the procedures to be followed to minimize these hazards.

(1) The employer shall ensure that each employee has been trained by a competent person in the following areas, as applicable:

(i) The nature of fall hazards in the work area.

(ii) The correct procedures for erecting, maintaining, and disassembling the fall protection system to be used.

(iii) The proper construction, use, placement, and care in handling of all stairways and ladders.

The Importance of Pre-project Planning

Virtually all construction safety authorities point out the importance of pre-project planning. The National Safety Council has pointed out the following relative to pre-project planning.

“High rates of illness, injury and death at work are more likely among construction businesses that do not have good pre-project planning, an OSHA official says.

“OSHA focused inspections during the first quarter of 1997, plus reports on major construction catastrophes, revealed that the lack of a plan for the sequence and methods of construction is the missing element at sites where serious injuries have occurred, according to Jim Lapping, the Agency’s Special Assistant for Construction ... Qualified persons should perform such analysis before the project gets under way and at major milestones ... The analysis should examine three major safety factors. The first step, project safety analysis, can provide a foundation for the project’s safety and health plan. Contractors and subcontractors can use this plan to further analyze the hazards and then to conduct a job-site safety analysis.” (Reported in OSHA Newsletter of the National Safety Council, Volume 26, No. 5, May 1997)

The Associated General Contractors of America

The following is taken from the ACCIDENT PREVENTION MANUAL of the Associated General Contractors of America related to planning: “... A well developed plan with adequate control provisions for monitoring to insure that the plan is closely followed, and that the program is working efficiently, will result in effective accident prevention ... Most important of all, however, is to remember that accident prevention, like production, must be adequately planned and controlled.”

Safety Authorities’ Recognition of the Dangers of Working from Ladders

American Society of Safety Engineers: INTRODUCTION TO FALL PROTECTION

In 1993, the American Society of Safety Engineers published the second edition of INTRODUCTION TO FALL PROTECTION by Nigel Ellis. It gives guidance relative to the hazards associated with ladders. The following is taken from this book:

“Portable ladders have rungs with very little structure to stand on, and so require a worker to use at least one hand at all times for securely maintaining balance. This means that ladders can be dangerous when used for work involving the hands (emphasis added), either for lifting, carrying, holding, manipulating, or other purposes, particularly while moving.

“A note on ladders: Use of ladders was the number-one cause of injurious falls in 1992, according to an OSHA Training Institute Study of OSHA investigations. Ladders are designed as a means of access only, provided three point contact is used and maintained by the climber at all times. The shorter the distance of ladder climb, the safer the access should be for limited use by workers. Unless secured, these climbing devices can upset or slip if they are not used according to manufacturer’s instructions. The fall risk is greatly increased if work is done from ladders.”(emphasis added).

National Safety Council - ACCIDENT PREVENTION MANUAL FOR INDUSTRIAL OPERATIONS, 11TH Edition

In the chapter entitled “Construction of Facilities”, it states: “Use of ladders at any time when applied for working and not solely access to another level calls for serious consideration of appropriate fall protection. The higher the ladder used, the more fall protection consideration must be given.”

29CFR1926.1053(b)(4). Ladders shall be used only for the purpose for which they were designed. In Standard Interpretation dated May 11, 1999, Russell Swanson, Director of the Office of Construction Standards, wrote to Nigel Ellis, Ph.D. of Dynamic Scientific Controls and stated: “For those situations where 1926.1053 does not require fall protection, an employee may work from a fixed ladder without fall protection only where that work is consistent with the purpose for which the ladder was designed. Most vertical, fixed ladders were not designed to work from with both hands off the ladder.”

Hazard Analysis:

The hazard to which Mr. Reis was exposed was a fall hazard. The risk of him falling was increased because of the following risk factors:

There was no planning or coordination by any of the defendants relative to the hazard created because this excavation was dug before the framing/ sheathing work had been completed. The existence of the excavation increased the risk of falling from the ladder because there was no safe place to locate the ladder.

Workers at this site were not required to be trained in OSHA’s ladder safety standards.

Quick Chek and Britland Construction customarily permitted workers at this job site to be exposed to hazards including climbing ladders with materials in their hands. This is evidence of a failure in safety management by both Quick Chek and Britland Construction. Workers climbing ladders while handling four by eight sheets of plywood is a very conspicuous and dangerous risk.

There is no evidence to indicate that there was a competent person at this site to perform safety inspections to recognize hazards associated with ladder usage.

System Safety Analysis - Root Cause Analysis

Safety professionals are trained to see the hazard as a symptom not a cause. In order to understand causation, we ask “why” the hazard or dangerous condition was permitted to exist. Deposition testimony indicates that it was a common practice at this site, as well as the other Quick Chek construction sites, for workers, including those of AGF Home Builders, to climb ladders while carrying plywood. That is, both Quick Chek and Britland Construction customarily permitted AGF Home Builders to work in violation of the OSHA standards. According to OSHA’s Multi-Employer Citation Policy, both Quick Chek and Britland Construction were controlling employers. As controlling employers, they violated the OSHA regulations set forth on pages 16 and 17.

Thomas DeVries, the construction manager for Britland Construction who was on the site on the day of this incident, testified that it is common on Quick Chek jobs for workers to climb ladders while handling four by eight sheets of plywood and then place them against the two by four studs and then use their nail gun to fasten them. This is very dangerous and in violation of OSHA regulations. Jeffrey Neary had known that Mr. Reis had been carrying plywood up the ladder by himself. He recognized the danger. He characterized it as a “one-man band.” However, no one from any of the defendants did anything to prevent the unsafe use of this ladder at this site at the time of this incident.

CME Associates was hired by Old Bridge Township to perform engineering services at this site. CME designated Philip Sabatino of J.A. Neary Excavating to be the project safety officer. However, there is no evidence that J.A. Neary Excavating did anything with regard to safety oversight for the work being performed at the time of this incident. The following is the most important deposition testimony of Jeffrey Neary:

Steven Kraus was his safety guy. However, Steven Kraus was not involved in scheduling. Apparently no one was involved in scheduling and coordinating relative to the risk of falling created by J.A. Neary’s excavation.
After this incident, he said that there was nothing done to prevent a recurrence. (Note: This is not accurate since after this incident, J.A. Neary Excavating and Britland Construction did coordinate to ensure that this risk didn’t exist in the future.)
Jeffrey Neary testified that he didn’t pay much attention to other trades at this site. (Note: Jeffrey Neary’s safety officer should have paid attention to the hazards associated with other trades at this site who may come into contact with the trench dug by J.A. Neary.)
There was no day to day scheduling.
He is sure that Steve Kraus wasn’t the designated safety officer. (Note: This is important because a J.A. Neary representative had been designated safety officer at this site.)
Neither Quick Chek nor Britland Construction did anything to verify that workers of AGF Home Builders had received the OSHA required safety training for ladder use. Had workers at this site been properly trained in ladder safety requirements as required by OSHA, a ladder would not have been used at the time of this incident. The injury would not have occurred.

There were other hazards that were permitted at this job site which were also very conspicuous and could lead to serious injury. Workers at this site were not required to wear eye protection while using nail guns. Apparently they were not required to wear hardhats. This is further evidence of significant safety management failures of both Quick Chek and Britland Construction at this job site.

Mr. DeVries of Britland Construction testified that he oversaw the work of AGF Home Builders and that he oversees safety at this job site. However, it is clear that he did not oversee safety of ladder use at this job site.

Deposition testimony indicates that it was not possible to place the ladder in a safe location. Had the ladder been placed inside the curb, the slope of the ladder would be too steep. OSHA requires that ladders be placed at an angle such that the horizontal distance from the top of the support to the foot of the ladder is approximately one-quarter of the working length of the ladder [1926.1053(b)(4)]. Had the ladder been placed in the trench, the slope of the ladder would have been dangerous for climbing, especially when violating the OSHA standard in carrying material in one hand. After this incident, representatives of Britland Construction and J.A. Neary Excavating recognized the dangers of permitting sheathing work to be done in proximity to excavations because of the instability of ladder placement. However, it should not have taken this incident for those representatives to recognize the danger. The hazard of unsafe ladder placement could have been eliminated by ensuring that the excavation work had been completed before sheathing work began, or requiring that sheathing work be done before the trench is installed. However, there were other indications of the failure of Britland Construction to comply with the industry standard and with OSHA regulations. The following is the most important deposition testimony of Thomas DeVries of Britland Construction:

He has built approximately 20 to 25 buildings for Quick Chek. (Note: This is important because the customary practice prior to this incident was to not coordinate to ensure that there was no excavation near where ladders had to be placed. In all those years, Britland Construction failed to plan, coordinate and foresee the hazard that led to injury in this case. They did not have to wait until this incident occurred to recognize the danger. Planning to foresee hazards associated with working from ladders would have identified the hazard and risks which led to injury.)
Thomas DeVries was on the job site on the day of the incident. There is testimony that he was in the area where the incident occurred. He disagrees with that. He testified that he was on the other side of the building. But he does agree that he saw the plaintiff sheathing this end wall before this incident occurred. Prior to this incident, he had an opportunity to recognize the danger but he did not. He saw the work being done but said nothing.
He understands that it is an accepted customary practice on Quick Chek jobs to carry plywood sheathing which is four feet by eight feet up a ladder. (Note: This is important because he does not recognize the fundamental requirements of OSHA’s ladder standards. If sheathers were required to install sheathing by way of scissors lifts or scaffolds, it would have eliminated the hazard of climbing the ladder while holding material.)
He didn’t check to see if his subcontractors trained workers in OSHA standards. (Note: This is important because he could take reasonable steps to ensure that the people that he hires train workers as required by OSHA standards. He had the authority to require subcontractors to receive the legally required safety training.)
He didn’t verify if the subcontractors had a competent person relative to OSHA compliance on the job site. A competent person would have recognized the hazard and would have had the authority to control it.
After this incident, he and the J.A. Neary representative changed the policy to ensure that ladders are not allowed to be installed near trenches. They instituted the policy to eliminate that exposure. (Note: This is important because the hazard could have been foreseen in the many years prior to this incident.)
He testified that framers never wore goggles. (Note: This is important because he regularly permitted his subcontractor workers to work in violation of OSHA standards relative to eye protection. It shows a blatant disregard for safety management on his part. It was the failure of safety management of Britland Construction and Quick Chek that was the root cause of this injury.)
He testified that he oversaw safety on this job site to the best of his ability. (Note: This is important because he is apparently ignorant of the requirements of OSHA standards. Nevertheless he recognizes his responsibility to oversee safety.)
He didn’t do anything to see that subcontractors were trained in OSHA’s ladder safety standards. If workers were properly trained in OSHA ladder safety standards, they would have been instructed not to work in violation of those standards.

Deposition testimony makes it clear that Quick Chek and Britland Construction failed to comply with the industry standard to plan, monitor and ensure that workers worked safely with ladders and that they received the required ladder safety training. Quick Chek and Britland Construction permitted workers to violate OSHA standards with regard to eye protection as well as ladder safety standards. It was the failure to plan, monitor and ensure that the work was done safely by trained workers that led directly to this exposure. Had Mr. Reis been properly trained and instructed, he would not have been using a ladder to perform this work. It is dangerous to use a ladder while carrying plywood. It is dangerous to have untrained workers on a job site. It is dangerous to allow two crafts to work in close proximity where one craft creates a condition which exposes the other craft to the risk of injury. The failure to manage safety by all three defendants in violation of the industry standard and OSHA was the cause of Mr. Reis’ injury.

Opinion/Conclusion:

The expert opinion obtained by the New Jersey injury lawyers who represented the injured worker was based on training, education and experience in the field of occupational safety and health as well as review of extensive lawsuit case documents. The opinion was that all three defendants, Quick Chek, Britland Construction and J.A. Neary Excavating violated the principles and practices of construction safety management because they failed to plan, monitor and ensure that the work was done safely and in compliance with OSHA regulations. All three defendants failed to make sure that AGF Home Builders’ workers were properly trained and instructed relative to ladder use. All three defendants failed to coordinate to ensure that the excavation did not create a risk of falling relative to the work required to be done by framers. The expert opinion was that all three defendants, according to OSHA’s Multi Employer Citation Policy, were controlling employers and that they violated the aforementioned OSHA regulations which were the cause of Mr. Reis’ injury.

As a result of the accident the injured plaintiff suffered a severely broken foot and ankle and underwent multiple surgical procedures. He was out of work for many months and incurred extensive medical bills.

Gerald H. Clark of the Keefe Bartels Clark law firm in Red Bank filed suit on behalf of Mr. Reis in Essex County Superior Court. The case settled during non-binding mediation for $650,000. The injured worker was represented at the mediation by attorneys John E. Keefe, Jr. and Gerald H. Clark of Keefe Bartels Clark law firm in Red Bank at the mediation. Keefe Bartels Clark is a New Jersey personal injury law firm with offices in Monmouth, Middlesex and Essex Counties. The firm services clients in Wall Township, Middletown, Red Bank, Newark, New Brunswick and throughout New Jersey.