Author: Thomas H. Welby

A recent ALJ decision demonstrates that, while a construction manager may, as a "controlling employer," be responsible for an OSHA violation by a subcontractor, the extent of the measures a controlling employer must implement, to satisfy the duty of reasonable care, is less than what is required of an employer with respect to protecting its own employees. Because the hazard in question was found to be outside the range of what could normally and reasonably be anticipated, the requisite of actual or constructive knowledge was negated, and the citation against the construction manager was vacated.

In Secretary v. Manhattan Construction ("Manhattan") was acting as construction manager on a resort expansion project. Two employees of E.C. Concrete ("ECC"), Manhattan's concrete subcontractor, were injured while entering a building under construction, when a half-dozen shoring beams fell from atop a scaffold on the seventh floor to ground level. An ECC crew on the seventh floor had used a crane to place the beams on top of a shoring scaffold, which tipped over when the crane's hoist chains became entangled with the scaffold's cross-brace.

Both Manhattan and ECC were issued "Serious" OSHA citations. Manhattan was alleged to have failed to use barricades to protect its subcontractor's employees from falling objects during overhead concrete work. It was not disputed that the first-floor entry being accessed by the ECC employees was not barricaded; that the guardrail system along the perimeter of the seventh floor had been removed; and that there was no canopy structure to protect persons in the entryway area from being struck by falling objects.

On the day of the occurrence, an ECC crew on the seventh floor was constructing a shoring system, to support the concrete pour for the roof. The tables supporting the seventh floor were still in place, and extended 3-4 feet beyond the concrete floor. The rented shoring system used by ECC was constructed in accordance with specifications provided by a consulting engineer. ECC had assembled and placed shoring scaffolds parallel to and approximately 6 feet from the floor perimeter. Each shoring scaffold weighed approximately 400 lbs., and was about 4 feet wide by 7 feet long, with four 10' vertical legs and cross-braces.

The ECC crew had used a crane located on the ground to hoist a half-dozen 17' long, aluminum beams, and place them on top of one of the shoring scaffolds. Each beam weighed about 60 lbs.

After the lift had been completed, the crane's hoisting chains became entangled with the scaffold's cross-brace, causing the scaffold to be lifted off the floor, and tip over onto the floor's perimeter. The scaffold did not fall off the floor, but rested precariously on the perimeter, extending over the edge. However, the 60-lb. aluminum beams did fall, injuring the two ECC workers below.

The construction manager contested the citation and penalties. At the trial, Manhattan argued that the Secretary had failed to show that Manhattan knew the employees on the ground were exposed to falling objects, because the accident was "unforeseen and freakish." Manhattan also asserted the "multi-employer work site defense," claiming that, as the construction manager, it did not create or control the alleged unsafe condition, and had no employees exposed to the condition.

Under the standard cited, when employees are exposed to falling objects, the employer must have all of them wear hard hats, and implement one of three additional measures. Since there were no toeboards, screens or guardrails, and no canopy structure, the employer was required to barricade the area to which objects could fall, prevent employees from entering the barricaded area, and keep objects that might fall a sufficient distance from the edge of the higher level, so that they would not go over the edge if accidentally displaced. OSHA's Safety Engineer testified that the hazard of falling objects resulted from the subcontractor's placement of the 10' high shoring scaffold just 5'8" from the concrete perimeter of the seventh floor.

In support of its multi-employer worksite defense, Manhattan strove to distinguish its role on the project as construction manager from that of a general contractor, and to push all responsibility off onto ECC, based on ECC's having agreed, in its contract, to ensure compliance with applicable safety standards.

The ALJ agreed that Manhattan was not responsible for performing the concrete work, or the shoring system, and had not placed the beams on the shoring scaffolds, or created an unsafe condition. The ALJ acknowledged, too, that there was no evidence that Manhattan's own employees had been exposed to the hazard of falling objects. (This last finding, in my estimation, was somewhat dubious, as Manhattan's personnel were always on site, and had access to the entry area into which the beams fell).

The ALJ found, nevertheless, that, its protestations notwithstanding, Manhatttan was a "controlling employer," and thus potentially responsible for the violation, even though it did not create the condition, and no employees of its own were exposed.

The ALJ credited ECC's superintendent's testimony that Manhattan had the authority to stop ECC's work, correct unsafe practices, and choose access points. Manhattan, the super testified, had "somewhat" directed ECC's work. Someone from Manhattan was on site at all times, ECC considered Manhattan to be no different from a general contractor, and ECC's contract was with Manhattan.

During the inspection that followed the accident, Manhattan agreed it was in control of the project, could correct hazards, and could stop the work of a contractor if it saw an unsafe condition. Although ECC was contractually responsible for safety, the ALJ found, Manhattan was not relieved of its responsibility to ensure a safe workplace: an employer cannot contract away its OSHA duties. Manhattan's designation as "construction manager" did not negate Manhattan's control over the subcontractors and the project. The ALJ found that Manhattan had the same degree over the project as a general contractor would have.

The ALJ found Manhattan to be a "controlling employer," and that the elements of the application of the cited standard, noncompliance, and employee exposure had all been proved. The ALJ nevertheless vacated the citation, and assessed no penalties. The ALJ rejected the Secretary's argument that ECC's actions, in placing the beams on the scaffold, and the scaffold so close to the perimeter, were open and obvious, wherefore Manhattan, with reasonable diligence, ought to have discovered them, and recognized them as hazards.

The standard cited, the ALJ found, required the Secretary to show, as a predicate to requiring abatement such as barricading, that "an employee is exposed to falling objects." That determination requires consideration of the nature of the object, and the distance of the object from the perimeter.

The scaffold, the ALJ reasoned, could not reasonably have been expected to tip over and pose a falling object hazard. It weighed more than 400 lbs., was stable, and located almost 6' from the perimeter.

The ALJ noted that the same OSHA engineer who did the post-accident inspection, and recommended the citation, had performed a second inspection about 5 weeks previously. Despite having observed ECC's shoring system under similar conditions, he had not identified any problems, or recommended a citation. But for the accident, he admitted, he would not have recommended a citation at the time of his later inspection.

The ALJ found persuasive testimony by an engineering expert that, under foreseeable conditions, there was no employee exposure to a hazard of falling objects posed by ECC's shoring system. Even assuming displacement of the beams atop the scaffold, he opined, the beams ought to have fallen not more than 18" from the base of the scaffold. This engineer had never designed a shoring system where he anticipated a crane picking up a scaffold, or beams on top of the scaffold being displaced.

In sum, the ALJ agreed with Manhattan that the accident was freakish: none of the Manhattan and ECC employees, with long careers in the industry, had ever experienced, heard of, or seen a similar accident.

The construction manager, the ALJ concluded in vacating the citation, could be charged with constructive knowledge of only such hazards as could normally and reasonably have been expected, based on knowledge, experience and expertise of the work being performed.

Our law firm represents construction-industry employers cited for alleged OSHA violations. From time to time, we have represented clients in citation contests. We understand — and OSHA and the Administrative Law Judges do, too — that there’s nothing wrong with an employer asserting substantive or procedural defenses to OSHA citations. On occasion, I admit, I have detected what I believed to be a discreet tilt in favor of crediting the testimony of Compliance Officers over employee representatives. Generally, however, the ALJs are highly knowledgeable on the law, and quite willing to vacate citations where a valid defense has been shown, or the Secretary has failed to establish elements of the violation.

From time to time, in reading ALJ decisions as part of writing articles for this series, I find myself amazed that employers, not infrequently, take citation contests through trial, based on very poorly-supported defenses.

OSHA citations, as you know, can have adverse consequences that can dwarf what, usually, are modest monetary penalties. If an employer has multiple “Serious” (or “Repeat” or “Willful”) violations within a three or five-year period, it may be debarred from bidding on, or being awarded, public contracts in some jurisdictions (notably, the City of New York). Increasingly, construction managers in private contracting are also avoiding contractors with multiple OSHA violations (which information can easily be found online).

However, it’s always important to keep in mind that, “if you’re going places, you’re going to get some mud on your boots.” In other words, the construction industry is hazardous, and rightly receives added attention from OSHA. If your construction company grows, or even stays in business in these economic times, you will be inspected. And, even your best efforts notwithstanding, you’re almost certain to get a citation every now and then.

It follows that your current OSHA citation is not a once-in-a-lifetime event, but one incident in a relationship with your Area Office that you hope will be long-lasting. Unless your company’s record is so wretched that your latest citation threatens to be that straw on the camel’s back that puts you out of business, your #1 priority should be to avoid harm to your employees, but your #2 priority should be to impress the Area Office that health and safety are matters you take seriously. If your company’s record is not very good, you need to “get religion,” and OSHA likes a repentant sinner better than the other kind.

It’s obvious, too, that engaging private counsel to take a citation contest to trial, and possibly beyond, is expensive, usually disproportionately so, where the monetary penalties involved are only a few thousand dollars. The Department of Labor’s Solicitor’s Office engages able attorneys, paid from public funds, who do nothing other than OSHA work. There are relatively few lawyers handling OSHA contests from the employer’s side, and the economics are such that I’ve never seen, and don’t expect to see, any who do that work more than occasionally.

Accordingly, even where the employer has a litigable defense, it’s often better off trying to negotiate a downward adjustment in any penalties, and/or a reduction in the number and classification of citation items. Money that might be spent in litigation will often be more wisely invested in added safety training or equipment.

In the case of Secretary v. Absolute Roofing & Construction, Inc., two Compliance Officers were driving past a church in a Cleveland suburb. Looking up, they saw a lone worker performing roof repairs, removing and reinstalling clay tile and replacing the copper valley, on the church’s steep-pitched roof. The CO’s announced their presence, and that they intended to inspect the site. The worker, the only one onsite at the time, identified himself as Michael Koran, and that his employer was Absolute Roofing (“Roofing”), an entity owned by Michael Kamis. The eaves of the roof Koran was working on were more than 13 feet above grade, and Koran was working without any fall protection.

While walking around the building after their first exchange with Mr. Koran, the CO’s saw a man with a truck displaying a “Roofing” logo come onto the site, and leave almost immediately. Later, they learned that this was a Roofing employee who, in response to a phone call from Koran, had rushed to the site to drop off a harness.

Roofing was cited for one “Serious” and two “Repeat” violations: the scaffold used by Koran did not rest on base plates or other firm foundation, and was not sturdy enough to bear without failure the intended load, were Koran to fall onto it. The third item, of course, was the failure to use fall protection.

While the total proposed penalties added to a not-insignificant sum exceeding $21,000, I think it was a mistake that Roofing took all of the citation items through trial, mounting a barrage of insubstantial defenses that Koran was not an employee, and that the company performing the roof repair was not Roofing, but a related entity, Absolute Exteriors (“Exteriors”).

The discrepancies in the respondent’s story take up several pages of the ALJ’s decision, and on the whole were almost comical. Just to give you a taste, the co-owner of Roofing, Michael Kamis, gave the CO’s a tax I.D. number for Absolute that corresponded to that from a prior inspection, in which the employer identified itself as “Absolute Exteriors d/b/a Absolute Roofing and Construction.” While the citations before the ALJ had been issued to Roofing, the Notice of Contest was on Exteriors’ letterhead, and stated that it was Exteriors that was contesting the citation.

There was evidence that Exterior had engaged and paid Koran. While there was no corroborative writing, Kamis testified that the church had hired Exteriors to perform the roof repair. These niceties, the ALJ found, were beside the point both because Roofing and Exteriors could be deemed a single entity for purposes of the OSHA citation, and because Roofing would, in all events, be deemed to have been Koran’s employer. OSHA uses an “economic realities” test, which considers who pays the employees, who directs and controls the employees; who provides safety training and instructions, and who the employees consider to be their employer. Analyzing these factors, the ALJ concluded that overall, Koran was an employee of Roofing.

The ALJ also analyzed the facts with reference to the so-called Darden test, which focuses on, among other things:

[T]he skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party’s discretion over when and how long to work; the method of payment; the hired party’s role in hiring and paying assistants; whether the work is part of the regular business of the hiring party; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party.

While finding that the totality of the Darden factors pointed to Koran being an employee of Roofing, the ALJ placed “great weight” on both Koran’s statement to the COs that Roofing was his employer, and Kamis’ admission that the company at the site was Roofing.

The citations and penalties were upheld as proposed. In considering the facts, this employer admitted it provided no safety training, but had fall protection close enough that it was able to speed over a harness for Koran’s use within a few minutes of the COs’ arrival. Looking at the effort expended in concocting an almost laughable defense, I think that Roofing, its relationship with OSHA, and the safety of its workers would be better have been served, by having the harnesses directly at hand, and in training the employees in fall protection and the use of the equipment.

Few things are more common on construction sites than scaffolds made of steel tubing and lumber planking. However familiar, by definition scaffolds are temporary structures, used to put men and materials on elevated platforms to perform work. If not properly designed, erected, inspected and maintained — or if used by workers insufficiently trained or not employing fall protection — scaffolds are accidents getting ready to happen.

While most larger projects use modular “tube and coupler” scaffolding, supplied and erected by specialized subcontractors, small projects, especially residential repairs done by non-union contractors, are notorious for accidents due to poor scaffolding practices. Scaffold safety isn’t “rocket science,” but many details require careful attention. And, while proper design and erection are obviously critical, frequent inspections, maintenance, employee training, and work rule enforcement are also essential.

There are many kinds of scaffolds. In addition to tubular-frame scaffolds, the varieties mentioned in OSHA ¬ß 1910.28 include (among others) mason’s and stone setters’ adjustable multiple-point suspension scaffolds, “boatswains’ chairs,” bricklayers’ square scaffolds, carpenters’ bracket scaffolds, needle-beam scaffolds, plasterers’, decorators, and large-area scaffolds, roofing brackets, and window-jack scaffolds. Many of these have specialized applications, or are restricted to light-duty or limited height applications.

Once a mainstay but now outmoded and rare, are wood-pole scaffolds. General-purpose scaffolds of this type, once common, are now seldom seen, as they must be built “from scratch,” and cannot readily be moved.

Design and erection fundamentals for scaffolds begin with the necessity to have a safety rating of at least four, and placement on a firm, level surface. Scaffold legs must be set on plain or adjustable bases, placed on mud sills or other foundations adequate to support the maximum intended load. If you can’t avoid placing the base plates on soft ground, use plywood pads (minimum 24″ square) beneath them. Any scaffold must be designed by a competent person. A tube scaffold, more than 125 feet in height above the base plates, must have written drawings and specs, designed by a professional engineer.

Frames must be placed one on top of the other with coupling or stacking pins, to provide proper vertical alignment of the legs. Scaffolds must be braced by cross-bracing or diagonal braces, or both, of such length as will automatically square and align vertical members, so that the erected scaffold remains plumb, square, and rigid. Planks and walk boards must be a minimum of 36″ below the stop of the scaffolding. All planking must be of “Scaffold Grade;” the maximum permissible span for 1-1/4″ x 9″ or wider plank of full thickness is 4′, with medium loading of 50 psf. Planking or platforms must be overlapped a minimum of 12″, or secured from movement. They should extend over their end supports not less than 6″, or more than 18″.

No part of the scaffold should be located within 10 feet of energized power lines. All platforms must be provided with 2″ x 4″ guardrails, at a height of between 36″ and 42.” Unless the area below is barricaded off, or the scaffold will not have open sides more than 10′ high, it must also have toeboards, not less than 4″ in height. If anyone will be required to work or pass under the scaffold, it must be provided with a ¬Ω” wire-mesh screen, covering the entire opening between the toeboard and the guardrail. Overhead protection must be provided on a scaffold exposed to overhead hazards.

Where the height of a scaffold is to exceed 20′, outriggers must be used to enlarge the base, and the scaffold must be tied into the building if feasible. The scaffold should be affixed to the building at intervals of not more than 30′ horizontally, and 26′ vertically. Where scaffolds are to be suspended using wire or fiber rope, the same must be capable of supporting at least six times the intended load. Only treated fiber rope should be used for or near work involving the use of corrosive substances or chemicals, and only wire rope-supported scaffolds used for cleaning buildings over 50′ in height with acid solutions. Special precautions should be taken to protect scaffold members, including wire or fiber ropes, when using a heat-producing process.

The most fundamental day-to-day safety rules in using scaffolds include the following. First, no one should be permitted to go up on a scaffold who is untrained in safe practices. Training should be repeated from time to time, and written records of topics covered, and the names of attendees, maintained. If work conditions, or the type or use of scaffolding changes, the training must be updated, and provided anew.

The scaffold should be checked before each work shift (and every time before use after it has been modified or moved) by a “competent person.” Everyone using the scaffold should be instructed to report signs of cracks, loose fasteners or bolts, or indications that the scaffold is out of plumb, or that vertical and horizontal members are not perpendicular.

Wheels must be locked before anyone climbs on the scaffold. The scaffold must never be moved with anyone on it. Safe access (normally, fixed ladders or ramps) must be provided, especially where the work requires a gap of 2 feet or more between the work area and the scaffold. Adjustable legs, intended for use in leveling the scaffold, must not be used to stretch the platform height. Where additional height is required, add one or more scaffold sections. Leveling should not be performed while anyone is on the scaffold.

Persons working on the scaffold must keep their center of gravity above the scaffolding. Employees must be forbidden to push/pull or lean against the wall or ceiling when standing or sitting on a scaffold, unless it is securely tied into the building. Employees must not climb or stand on diagonal braces, and should work only while standing on one of the platforms. No one shall work below or in the fall zone of the scaffolding. Portable ladders must not be leaned against the scaffold, or used on a scaffold platform. If there is a storm or heavy winds, a worker must not climb on the scaffolding unless he is using fall protection or a wind screen. Workers should not go onto the scaffold with snow or ice on it, except to remove the same, and to apply sand to the planking to prevent slipping when work resumes in clear conditions.

Open sides of the scaffold must be equipped with guardrails. Platforms must be kept clear of clutter, to prevent trips and falls. Last but not least, all workers on scaffolds working or walking at a height of 10′ or greater must have adequate fall protection in the form of a harness, and must tie off religiously. Since falls are the #1 cause of preventable construction fatalities, supervisors must be instructed to remind workers of the foregoing rules regularly, to call out violations, and to enforce the rules with a graduated system of disciplinary penalties. I am reminded of an incident in Brooklyn a couple of years ago, in which a scaffold collapsed beneath three men working five stories above grade. All three men had been provided with harnesses. The two men who were tied off got a bad scare, and spent 20 minutes dangling, until they were rescued by firefighters. The third man, who was not tied off, fell to his death. Safety rules are useless in preventing accidents — and OSHA citations — unless they are enforced. No one seen working aloft without his lanyard fastened should ever escape being spoken to, at least.

Needless to say, any scaffold seen to be damaged or improperly erected should not be used until repaired or corrected.

The foregoing covers most of the basics, but be sure to consult the OSHA regs if you plan to use a wood-pole or “specialty” scaffold. And, while most scaffolding subs are knowledgeable and conscientious, remember that, ultimately, if your employees will use the scaffold, or you’re the general contractor, it’s your responsibility.

Thomas H. Welby is a licensed professional engineer, as well as an attorney and managing partner of Welby, Brady & Greenblatt, LLP, a construction law firm with its main office in White Plains. Geoffrey S. Pope, counsel to the firm, assists in the preparation of this series. Articles in this series are for general guidance only, and should not be relied upon as providing all information necessary for compliance with OSHA and other legal requirements.

Thomas H. Welby is a licensed professional engineer, as well as an attorney and managing partner at Welby, Brady & Greenblatt, LLP, a construction law firm with its main office in White Plains. Geoffrey S. Pope, counsel to the firm, collaborates in the preparation of this series. Articles in this series are for general guidance only, and should not be relied upon as providing all information necessary for compliance with OSHA and other legal requirements.

In the years between 1995 and 2011, there occurred a “swing in the pendulum” at the New York Court of Appeals, regarding the interpretation of the State’s “Scaffold Law,” Labor Law ¬ß 240(1).

The Scaffold Law is best-known for providing enhanced protection, where construction workers suffer falls from elevated surfaces to a lower level. While ¬ß 240(1) is not quite a “strict liability” statute, imposing liability in all “gravity-related” accidents involving both falls and “struck-by” injuries from falling objects, an injured plaintiff’s “comparative negligence” will not be considered in mitigation of the damages recoverable. The plaintiff’s own negligence is a bar to recovery only where it is so pronounced as to be the “sole proximate cause” of his injuries. It is, nevertheless, a condition to recovery that the injury not only be caused by the force of gravity, but that it result from the employer’s failure to provide a statutorily-prescribed protective device.

In 1995, at which time the dominant faction on the Court of Appeals favored a restrictive reading of ¬ß 240(1), the Court’s decision in Misseritti v. Mark IV Construction Co. stated that Labor Law ¬ß 240(1) could not be the basis for recovery, where a worker suffered an injury caused by a falling object whose base stood at the same level as the worker.

In 2011, by which time the “barrel had rolled” in favor of a more liberal reading of ¬ß 240(1), the Court distanced itself from Misseritti, in the case of Willinski v. 334 East 92nd Housing Development Fund Corp. In Willinski, the plaintiff and co-workers were demolishing brick walls in a warehouse. Prior demolition had left standing two vertical plumbing pipes, rising about 10′ from the floor on which the plaintiff was working. Debris from a wall being demolished struck the pipes, and the pipes fell over and struck the plaintiff, injuring him. The Court of Appeals did not hold in Willinski that Scaffold Law liability necessarily existed on the facts presented, but rather that it would no longer apply a “same level” rule to categorically bar liability.

Thus, the Court in Willinski did not make a definitive ruling as to liability or non-liability, but found an issue of fact, to be resolved at the trial court level, regarding whether the worker’s injury resulted from the lack of a statutorily-prescribed protective device. If a device mentioned in the statute would not be necessary or expected in the circumstances, the peril would be incidental to construction work, and not within the statute’s coverage. If, however, a device ought to have been in place, liability would not be excluded as a matter of law, merely because the falling object stood at the same level as the injured worker.

The trend toward more expansive coverage may not continue indefinitely, as two of its proponents have left the Court (Judge Jones having died, and Judge Ciparick – the author of the decision in Willinski – having retired). However, the trend seems, for now at least, to be continuing, as illustrated in Toney v. Raichoudhury, recently decided in Kings County Supreme Court.

The project in Toney was a residential remodeling job in Nassau County. Defendant Lee Remodeling was the general contractor, and defendant M&M Metals (“M&M”) was a subcontractor, whose scope of work included the installation of curtain wall framing and glazing.

On the day of the accident, Erwin Toney was one of three M&M employees, whose only task for that day was to receive the delivery of six wooden crates of double-insulated thermal glass. The crates were delivered on a flatbed truck. The truck parked on the street in front of the residence. The truck was equipped with a crane, which was used to move the crates, one by one, to the driveway.

To facilitate installation, the workers staged the offloaded crates, each containing multiple plates of glass, so that when the crates were opened, the plates would not fall out, and the topmost sheet could be readily accessible.

This was accomplished in a fashion which was shown to be consistent with industry practice, and consisted of placing two crates upright, and parallel to each other on the driveway. The crates, each of which was roughly 9-10′ tall, and weighed more than 1900 lbs., were then tilted towards each other, until the tops of the crates touched and supported each other, forming an “A”. Then, the workers would use a screw gun to screw two wooden braces to the crates, one on each side, which braces served as crossbars to hold the crates in place.

While unloading the last two of the six crates, one of Toney’s co-workers was attempting to secure the horizontal braces on the “A,” as Toney and the other co-worker tilted the crates towards each other. Toney left his position to the side of the crates, and walked in front of the crates, to adjust the crate that was “off.” The crate nearest to Toney began to shift, and he may have been trapped by the toes of his boots coming under the weight of the crate. The crate fell onto Toney, causing crush injuries that proved to be fatal. The two crates were not secured to each other with braces when they fell, and they were no longer attached to the crane. No chocks had been placed on the ground to prevent them from tilting outward before the wooden braces were secured.

A wrongful death and personal injury action by Toney’s administratrix came before the trial-level Supreme Court on motions for summary judgment by Lee Remodeling, the general contractor, and M&M, Toney’s employer. So far as relevant to our Scaffold Law discussion, the Court first declined to dismiss the ¬ß 240(1) claim, holding that the sufficiency of an elevation differential and a fall from a height should take into account the weight of the object and the amount of force it is capable of generating, even over the course of a relatively short descent.

The trial court in Toney then went even further, and granted summary judgment for the plaintiff on the issue of liability. It held:

• that Toney was not the sole proximate cause of his injuries;
• that the crates were not properly secured (or braced and chocked) before the crane line was released; and
• that the crates – notwithstanding that they stood on the same level as the plaintiff – came within the purview of ¬ß 240(1), due to their size and weight, and the force they were capable of generating.

Toney is a trial-level decision. If the defendant chooses to appeal, it’s a respectable argument that the better course would have been for Supreme Court to leave the ultimate issue of liability for the trier of fact, rather than granting summary judgment for the plaintiff.

Willinski and other recent cases, however, do seem to offer adequate support for the legal conclusions that, in falling object cases under ¬ß 240(1), there is no per se “same level” rule that excludes liability; that the weight of the falling object must be considered; and that the crucial factor is not the elevation differential, but the presence or absence of a statutorily-prescribed protective device.

Construction employers know that most OSHA violations are classified as belonging to one of four levels of gravity: Other-Than-Serious, Serious, Repeat, and Willful. (I say “most,” because there is a fifth level:de minimis violations, mere technical violations of a standard, for which monetary penalties and abatement orders are inappropriate).

What distinguishes “Serious” violations is that they involve a substantial probability of death or serious bodily harm. To sustain a “Serious” citation, the Secretary does not need to prove that an accident based on the cited hazard is likely, only that, were an accident to occur, death or serious injury would likely result. Examples of “Other-Than-Serious” violations are record-keeping violations, or a missing guardrail at a height where a fall would probably result in a mild sprain, cuts or abrasions.

In determining whether a violation is “Serious,” OSHA compliance officers consider the following four elements:

• The type of accident or health hazard exposure that the standard in question is designed to prevent;
• The most serious injury or illness that could reasonably result from the violation of the subject standard;
• Whether the injury or illness identified in the preceding step includes death, or serious physical harm; and
• Whether the employer knew, or with the exercise of reasonable diligence could have known, of the hazardous condition.

“Other-Than-Serious” violations generally have no immediate impact on your ability to obtain contracts for public work. Also, although monetary penalties can be as large as for “Serious” violations, as a matter of policy, OSHA generally does not assess penalties for first-time, “Other-Than-Serious” violations by employers having fewer than ten employees, where the total number of violations is less than ten. Accordingly, often it will not be in the employer’s interest to make the considerable investment necessary to contest “Other-Than-Serious” citation items.

Be aware, however, that “Other-Than-Serious” does not mean entirely inconsequential. An “Other-Than-Serious” violation that becomes a final order may later become the predicate for a “Repeat,” or even a “Willful,” violation.

A “Repeat” violation, although not defined in the OSH Act, is roughly what you think it is, and will subject you to enhanced penalties. Two things you ought to know are that the “Repeat” violation does not need to be of the very same standard; a prior violation of a “substantially similar” standard will suffice. Also, while older “Serious” citations may not impair your ability to get public work, there is no prescribed “lookback” period for a “Repeat” violation.

Also, while the prior violation must have become a final order to serve as the basis for a “Repeat” violation, some courts have held that citations that were settled, even where the stipulation contained exculpatory language, may qualify.

“Willful” violations, as you already know, are the most damaging, carry the highest penalties (which may include criminal sanctions) and are the most likely to impair your ability to get work, especially public work. What is it that defines a “Willful” OSHA violation?

Here again, the OSH Act fails to provide a definition, and there is still not a precise, universally-accepted formulation.

The following is, however, a working definition sufficient for nearly every case. A “Willful” OSHA violation requires, as a preliminary matter, that the cited party cited be an employer subject to the OSH Act. It involves a conscious, intentional, deliberate, voluntary decision. It differs from a “Serious” violation, in that it contains both (1) a heightened awareness of the illegality of the violative conduct or conditions; and (2) either conscious disregard for OSHA requirements, or plain indifference to employee safety.

While small differences survive among the OSH Review Commission and the courts as to the exact contours of “Willfulness,” all agree that the classification requires proof that: (1) the employer knew, or should have known, that the violation existed; (2) the employer voluntarily chose not to comply with the Act by correcting the violation; and (3) that choice was made with intentional disregard for the Act’s requirements, or plain indifference amounting to recklessness.

On occasion, we have thought OSHA a little too enthusiastic in characterizing violations as “Willful.” However, in part because such a violation is potentially so damaging to the employer, there is usually some “pushback” where a violation has been over-charged as to degree. The Administrative Law Judges seldom hesitate to downgrade violations to “Serious,” where the employer’s heightened awareness, and conscious disregard or plain indifference, are not established.

For example, in Secretary v. D. W. Caldwell, Inc., the respondent was a commercial sheet metal and roofing contractor that was installing a metal roof on a large campus building in Alabama. It was cited for having employees on a steep roof whose safety harnesses were not tied off, exposing them to a fall hazard of 32 feet.

The work, the judge found, was hazardous because of the slope (5:12) and height of the roof, and numerous tripping threats (panels, boxes, ropes, drills, etc.) The ALJ was unimpressed by the foreman’s claim that the crew could not use fall protection, because they could not transport the panels as required with their harnesses connected to anchor points.

Although the ALJ rejected an “unpreventable employee misconduct” defense, affirmed the violation as “Serious,” and upbraided the employer for its poor judgment, he declined to find that the violation was “Willful.”

In rejecting the classification of the violation as “Willful,” the ALJ made extensive findings, including the following. The employer had only 15 employees. It had a written safety program which, although inadequate, was augmented by weekly safety meetings and weekly visits from the company’s principal. It issued verbal warnings and filed written reprimands, as a means to enforce safety rules. Employees were provided with the necessary fall protection equipment. The foreman was experienced, and had attended OSHA’s 10-hour safety program. Following inspection, the entire crew received formal, third-party fall-protection training.

The CO agreed that the crew was properly trained in fall protection, and that the employer’s safety program, training, communication, and enforcement were “average.” The foreman was criticized for his “unfortunate” belief that not tying off while carrying the metal panels on the roof was not a fall hazard owing to the roof’s expanse, and that most work was being done near the peak. However, after inspection, the employer purchased retractable lines, allowing the employees to keep their hands free while tied off.

The CO agreed that the crew was properly trained in fall protection, and that the employer’s safety program, training, communication, and enforcement were “average.” The foreman was criticized for his “unfortunate” belief that not tying off while carrying the metal panels on the roof was not a fall hazard owing to the roof’s expanse, and that most work was being done near the peak. However, after inspection, the employer purchased retractable lines, allowing the employees to keep their hands free while tied off.

Overall, the ALJ felt that the employer had demonstrated a good faith effort to comply with OSHA requirements, and did not merit a “Willful” violation. The penalty imposed was reduced from the $28,000 proposed by the Secretary to $6,000.

If, following an inspection, you are cited for a “Willful” violation, keep in mind the 15 working day time limitation to file a notice of contest. A “Willful” OSHA citation is a matter of the utmost urgency, and you should contact experienced OSHA counsel at once.

OSHA (the federal agency within the U.S. Department of Labor) is the largest, but by no means the only, government agency dedicated to occupational safety and health. Under the federal OSH Act, individual states are permitted to “opt out” of federal OSHA. New York, New Jersey and Connecticut have chosen not to opt out, and so are governed by federal OSHA as to those private-sector employees that fall within the statute. Each of these three states, however, has its own agency, within its (state) Department of Labor that covers public-sector employees. Approximately half the states do have their own “little OSHAs,” as authorized by the federal statute. The standards promulgated and enforced by “little OHSAs” generally differ but slightly from the federal standards, as the nationwide statute requires states’ “little OSHAs” to afford no less protection to employees.

Excluded from OSHA coverage are mining operations, for which there is a separate Mine Safety & Health Administration (MSHA). From 1891 until 1977, mine safety was under the U.S. Department of the Interior. Under the current statute, which moved enforcement from Interior to Labor, enforcement is under the MSHA, and adjudication under a separate MSH Review Commission. This organizational setup is borrowed from the OSH Act.

Recently, OSHA and MSHA issued a joint “Hazard Alert” concerning Diesel Exhaust and Diesel Particulate Matter. This is a major hazard in underground mines, in which diesel-powered equipment is ubiquitous, and ventilation must be mechanically supplied. However, most heavy equipment, medium and heavy-duty trucks, bucket lifts and generators found on construction sites have diesel engines, and so construction workers are at considerable risk from this hazard, too.

Diesel exhaust (DE) is a complex and unwholesome mixture of chemicals and particulates. It includes both a gas/vapor phase and a particulate phase, each of which includes both organic and inorganic components.

The major constituents of the gas/vapor phase of DE include carbon monoxide, oxides of nitrogen, sulfur dioxide, formaldehyde and other aldehydes, benzene, 1,3-butadiene, and a number of polycyclic aromatic hydrocarbons.

The particulate phase includes clusters of respirable particles, composed mainly of carbon. A variety of chemicals are contained within, or adsorbed onto, the DPM, affecting the toxicity of the particulate. The particles are classified according to size as well as composition.

Of particular health concern are fine or ultrafine particles, as these can get inhaled deep into the lungs. The composition of these particles is, typically, elemental carbon, with adsorbed compounds such as various organic compounds, sulfates, nitrate, metals (including metallic abrasion particles) silicates, ash, and a variety of trace elements.

Short-term exposure to high concentrations of diesel exhaust can cause irritation to the eyes, nose, throat and lungs, as well as lightheadedness, coughing and nausea. DE can exacerbate asthma and cause allergies. Long-term exposure has shown in laboratory studies a range of dose-dependent inflammation and cell changes in lung tissue. In June 2012, the International Agency for Cancer Research classified diesel exhaust as a Group 1 human carcinogen.

Miners in underground metal/nonmetal mines have, under the MSH Act, a permissible exposure limit (PEL) of 160 µg/m3 when measured as an 8-hour time-weighted average. If engineering and administrative controls do not reduce exposures below the PEL, respiratory protection, a high-efficiency air-purifying respirator must be worn.

OSHA does not presently have a PEL for DPM. However, there do exist PELs for other components of diesel exhaust (e.g., carbon monoxide, nitric oxide, and nitrogen dioxide) and monitoring for these can give some indication of the presence of diesel exhaust, as well as the effectiveness of engineering and administrative controls aimed at minimizing employee exposure to such exhaust, when working with or around diesel-powered equipment.

Because, usually, the health impacts of exposure to toxins such as DPM and other toxins are not so sudden or dramatic as when a trench caves in, or a worker falls to his death from an elevated surface, there is some danger of these hazards being overlooked in developing and implementing a health and safety program.

Don’t think that, because OSHA’s standards don’t have a prescribed PEL for diesel exhaust that you can’t be cited for employee exposure. Since it’s a recognized hazard, it likely falls under the General Duty Clause. Another consideration to keep in mind is that, under OSHA’s “multi-employer policy,” you can be cited if your employees are exposed to unhealthful levels of DE, even if the source is diesel equipment operated by another employer or employers.

While monitoring for air quality and employing an industrial hygienist are seldom if ever bad ideas, these are definitely steps you should take, if you utilize diesel-powered equipment indoors, or in semi-enclosed spaces (such as parking garages). Likewise, if your employees must work where other employers’ activities are creating a potential DE hazard, having an industrial hygienist monitor the air provides you with a stronger basis to negotiate abatement, if needed, with the trade creating the hazard, the GC, and/or the owner.

Assuming only open-air use of diesel-powered equipment, except in unusual circumstances the primary strategy in keeping employee exposure to DE at tolerable levels will be a combination of engineering controls. Examples of these include:

• Routine preventive maintenance of diesel engines to minimize emissions;
• Installing cleaner-burning engines;
• Installing diesel oxidation catalysts;
• Using engine exhaust filters;
• Using special fuels or additives;
• Installing or upgrading main or auxiliary ventilation systems, e.g., tailpipe or stack exhaust vents to capture and remove emissions in maintenance shops or other indoor locations; and
• Providing equipment cabs with filtered air.

Administrative controls (changing procedures to reduce or eliminate the hazard) should also be employed. A few you should consider are these:

• Limiting speeds and using one-way travel routes to reduce traffic congestion;
• Limiting or prohibiting unnecessary idling or lugging of engines;
• Limiting the total amount of diesel-powered equipment or total engine horsepower operating in a given area;
• Employing an industrial hygienist to confirm that DE output does not exceed the capacity of the ventilation system; and
• Restricting unnecessary employee access to areas in which diesel equipment is being used, and keeping diesel equipment, insofar as it is practicable to do so, away from employees not involved in its use.

The OSH Act requires that “at least one lifesaving skiff shall be immediately available at locations where employees are working over or adjacent to water.” In a case of interest, also, because it disapproved the so-called “pick and carry” operation of mobile hydraulic cranes, the OSH Review Commission, affirming an Administrative Law Judge’s findings, clarified what “immediately available” means.

The employer in Secretary v. Boh Brothers Construction Company was building two bridges over Lake Pontchartrain, Louisiana for the “Interstate 10 Twin Span Project.” These bridges, both more than five miles long, extend between Slidell, La. and New Orleans. Boh had numerous crews at work, in multiple areas on and around the bridges. It also had more than a dozen boats in the vicinity, which it used for transporting workers and materials, as well as to respond to water emergencies.

On the day in question, two boats were continuously manned by Boh employees. Additional boats available for water rescue were docked in a boat pen at the north shore. The pen was located 150 to 200 yards away from an office trailer, staffed with at least one employee qualified to operate a boat, and provide first aid.

On the bridge deck near the north shore, Boh was building curbs along the edges of the deck using curb forms. Once a curb was finished in one location, laborers disengaged the forms, and a mobile hydraulic crane lifted them and traveled up to 150 feet, to deposit them at the next location. This procedure is known as “pick and carry.” Each load, with rigging and attachments, weighed just under 3,000 lbs. At the location, the deck had a slope of 1.43 degrees (2.5%) and a downward gradient, toward the north shore, of 0.9 degrees (1.6%).

The crane operator was working only his second day on the job. Like his predecessor, he was operating the crane on an uneven surface, with the crane’s outriggers retracted. The prior operator kept the curb forms in front of the crane, both when lifting the load, and while traveling with it. The new operator swung the load from the front of the crane to the back before traveling, which meant that the load was to the side of the crane as he rotated the boom.

A supervisor, concerned that the new operator’s technique might not be safe, exhorted him to “at least keep the boom scoped in” (to its shortest length) to reduce the radius of the swing. On the day in question, the operator followed these instructions, and carried out two “pick and carry” procedures without incident. The third time, the operator did not follow his instructions. As he hoisted a form, and began to swing it to the side, the crane tipped over, and fell onto the guardrail.

The operator lost consciousness and remained in the cab, dangling over the water, for between 2 and 7 minutes, while other employees held onto the crane, attempting to keep if from falling into the lake. Tompkins, the foreman supervising the crane’s operations, immediately made a cell phone call to Moulton, the senior project superintendent, to report the accident. Moulton used his cell phone to place multiple calls, including one to Solis, the field project manager, who was in the officer trailer at the north end of the bridge; and one to foreman Bailey, who was also at work on the bridge’s north side.

Bailey used his cell phone to call Jones, the lead boatman. Jones then called Byrd on his marine radio. At that time, Jones and Byrd were both in their boats on the water near the south shore. Bailey drove to the accident scene on the bridge, and was on the phone with Moulton, when the crane operator fell from the crane into the water.

Byrd was between 3 and 4 miles from the accident scene when he received the call from Jones. It took him between 6 and 10 minutes to reach the crane operator in the water. Project manager Solis, in the meantime, ran 150-200 yards from his office in the trailer to the boat pen. He traveled 250 to 300 feet, reaching the rescue location shortly after Byrd did. Byrd and Solis were not able to pull the unconscious operator out of the water and into the boat, but held his head above water, while steering the boat to the shore, where emergency personnel were waiting. Unfortunately, the operator died a week later from his injuries. OSHA cited Boh for failure to have a lifesaving skiff “immediately available,” and for the operator’s improper use of the mobile crane.

While the standard does not define “immediately available,” an OSHA interpretation letter identified factors relevant to that determination. While an interpretation letter is not binding precedent, the Administrative Law Judge ruled that whether Boh had made a lifesaving skiff “immediately available” turned on whether it had a water rescue system in place that could be expected to rescue a worker from the water within the three-to-four minute period before permanent brain damage could occur.

The ALJ determined that Boh’s response was prolonged by its failure to equip crew boats with radios capable of receiving an emergency broadcast channel. He also discounted the availability of boats and operators on the north shore, in part because Solis was not assigned lifesaving duties on that day, and the only active crew boat operators were miles away from the accident. The office trailer on the north shore, the Secretary argued, was too far away from the boat pen, for an operator stationed there to be considered in the “immediate area.” Accordingly, and based on the operator having been in the water for between 8 and 12 minutes, the ALJ found that the requirement of a lifesaving skiff “immediately available” had not been complied with. The citation and the associated penalty were therefore affirmed, and that outcome was upheld on appeal.

The Commission also agreed with the ALJ that Boh had violated the standard requiring that a crane be operated only within the manufacturer’s specifications and limitations. In defense of the “pick and carry” operations on the bridge deck, Boh attempted to show at trial by expert witness testimony that “pick and carry” is an accepted practice in the bridge construction industry – even when performed on a sloped surface, and without outriggers.

The ALJ stressed that the manual for the crane used (a Link-Belt RTC 8030 Series II) states that:

• The crane must be level, on firm ground, with the outriggers fully extended and the tires clear of the ground before beginning any operation.
• The crane must be level before making a lift: a 3-degree side tilt can reduce capacities by 50% or more.
• “If a smooth level route is not available, don’t travel with a suspended load.”

The prior crane operator testified that he had done “pick and carry” operations even though the deck was not level, and he was generally aware that a gradient affects load capacity. The employer’s expert testified that the key to safe operation (and accepted industry practice) when operating a mobile crane “on rubber” on a sloped surface, is to “derate” the crane. This means adjusting the load charts to compensate for the slope, and staying within the crane’s reduced capacity.

The crane was equipped with a computerized “Capacity Limiter,” which monitored crane functions, and continuously compared the load with a copy of the crane capacity chart in the computer’s memory. However, the viewing screen was faded, such that, in daylight, the operator would have to shade the screen to read it.

Rejecting the expert’s testimony, the ALJ found that “derating” is irreconcilable with the manufacturer’s instructions, and that traveling with a load on a sloped surface during “pick and carry,” without outrigger beams extended and jacks partially deployed, is impermissible.

Performing demolition safely is a tough challenge. Two key elements in meeting it successfully are conscientious preparation, and – as with most OSHA matters – paying attention.

OSHA’s demolition standards are largely (but not entirely) within 29 C.F.R. 1926, subpart T, “Demolition.” Of particular importance is ¬ß 1926.850, “Preparatory Operations.”

Neglecting prescribed pre-demolition measures often results in OSHA citations. Before employees are permitted to start demolition operations:

…an engineering survey shall be made, by a competent person, of the structure to determine the condition of the framing, floors, and walls, and possibility of unplanned collapse of any portion of the structure. Any adjacent structure where employees may be exposed shall also be similarly checked. The employer shall have in writing evidence that such a survey has been performed.

Identifying the presence and location of lead, asbestos, and other hazardous substances is an important part of the pre-demolition survey. If “any type of hazardous chemicals, gases, explosives, flammable materials, or similarly dangerous substances” has been used in “any pipes, tanks, or other equipment on the property,” or is even suspected of being present, testing and purging must precede actual demolition. The failure to comply with this requirement is another frequently-cited OSHA violation. All utility service lines must be shut off, capped, or otherwise controlled, and the service providers notified. If any power, water, or other utilities are to be maintained during demolition, the lines must be temporarily relocated and protected.

Another key component of the survey is identifying the structure’s weak points. OSHA frequently cites employers for failing to provide shoring or bracing for walls, to prevent premature collapse. Where the structure to be demolished has been damaged by fire, flood, explosion or other cause, the walls and/or floor must be shored or braced, as appropriate.

Another often-neglected precaution is the erection of an overhead shed and/or canopy to provide safe entrance into the structure to be demolished, and protection from falling objects. Any multistory building must be protected for a minimum of 8 feet from the perimeter of the building. All canopies shall be at least two feet wider than the building entrances or openings (1 foot wider on each side) and capable of sustaining a load of 150 pounds per square foot

The #1 cause of construction injuries – fall hazards – is very much present on demolition projects. Wherever a hazard exists to employees falling through wall openings, each opening must be protected to a height of approximately 42″.

Since demolition operations are subject to the fall protection standards of Subpart M, note that employees on walking/working surfaces must be protected from falling through holes (a “hole” being defined as “a gap or void 2″ or more in its least dimension”) more than 6′ above lower levels, by covers, guardrail systems, or personal fall arrest systems. Covers are required, also, to protect against objects falling through holes. Floor openings not used as material drops “shall be covered over with material substantial enough to support the weight of any load which may be imposed,” the covering to be “properly secured to prevent its accidental movement.”

As guardrails are a preferred means of fall protection in building interiors, you should become intimately familiar with the provisions of 29 C.F.R. ¬ß 1926.502. In addition to other, technical requirements, guardrails must be capable of withstanding, without failure, a force of at least 200 lbs., applied within 2″ of the top edge in any outward of downward direction.

Access ways to the structure of the building are to be entirely closed at all times, excepting designated stairways, passageways and ladders. These must be periodically inspected, and maintained in a clean safe condition. Where a stairwell is being used in a multistory building, it must be properly illuminated, and completely and substantially covered over at a point not less than two floors below the floor on which work is being performed. Access to the floor where demolition is in progress shall be through a properly-lighted, protected, and separate passageway.

Where debris is to be dropped through holes in the floor, without the use of chutes, the area onto which the material will be dropped must be completely enclosed, with barricades not less than 42″ high, and not less than 6′ back from the projected edge in the opening above. Signs warning of the hazard of falling materials must be posted at each level. The removal of debris from the lower area shall not be permitted, until debris handling above has stopped.

Where chutes are employed, the chute openings must be protected by a guardrail about 42″ above the floor, and any gap between the chute and the edge of openings in the floors through which it passes must be solidly covered over. Except at ground level, chute openings must be kept closed when not in use. No material may be dropped to any point lying outside the structure’s exterior walls, unless the area is effectively protected. Where material is deposited into chutes by wheelbarrows or mechanical equipment, a securely-attached toeboard or bumper, at least 4″ thick and 6″ high, must be provided at each chute opening.

At the top of this article, I mentioned that in addition to careful preparation, “paying attention” is a major component of demolition safety. The regulations codify a number of requirements where watchfulness is needed. To cite just a few examples: “a substantial gate shall be installed in each chute at or near the discharge end. A competent employee shall be assigned to control the operation of the gate, and the backing and loading of trucks.”/p>

Where floor arches are being removed, “employees shall not be allowed in the area directly underneath, and such an area shall be barricaded to prevent access to it.” Notwithstanding that the lower level has been closed off, it’s necessary to confirm that no one is present there, before the arch removal proceeds.

Where balling or clamming is being performed, “no workers shall be permitted in any area, which can be adversely affected.” Only workers necessary for the performance of the operations may be permitted in the affected area at any other time.

As demolition proceeds, “continuing inspections by a competent person shall be made . . . to detect hazards resulting from weakened or deteriorated floors, or walls, or loosened material. No employee shall be permitted to work where such hazards exist until they are corrected by shoring, bracing, or other effective means.”

Since demolition (not involving explosives) consists essentially of workers tearing down a structure from the inside, and entails many potentially hidden hazards and tons of debris being dropped through floors or chutes, it’s a hazardous undertaking indeed.

In addition to observing specific regulations like the few just mentioned, you need leadership from your supervisory personnel, and trained workers who will communicate with one another, and with supervisors, regarding dangers observed.

The cost of lapses can be great. In one recent case, a bobcat collecting debris on the 19th floor of a building being demolished struck a steel beam concealed under concrete rubble. The beam was propelled through the parapet wall, causing a twenty-foor-long section of the wall to collapse into a pit outside the structure. Ordinarily, radio communications were used to ensure that no one was in the pit when work was in progress above. Unfortunately, that precaution was not carried out, and a flagger who was chatting with a driver who had backed his truck into the area to remove debris were killed when the parapet wall collapsed onto them.