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Who is Liable for Construction Site Safety Violations?

Posted by Stacey L. Pietrowicz

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According to the Massachusetts Survey of Occupational Injuries and Illnesses Report, in 2015 there were over 79,800 work-related injuries reported in state. But what are they, and who is liable? When there are several employers or contractors involved, it’s not always clear.

Most common workplace safety violations

Earlier this month, the Occupational Safety and Health Administration (OSHA) announced the Top 10 nationally cited workplace safety violations in 2017:

Safety Violation

No. of Violations

1.   Fall Protection – General Requirements (1926.501)     

6,072

2.   Hazard Communication (1910.1200)   

4,176

3.   Scaffolding (1926.451)              

3,288

4.   Respiratory Protection (1910.134)     

3,097

5.   Lockout/Tagout (1910.147)    

2,877

6.   Ladders (1926.1053) 

2,241

7.   Powered Industrial Trucks (1910.178)

2,162

8.   Machine Guarding (1910.212)               

1,933

9.   Fall Protection – Training Requirements (1926.503)     

1,523

10. Electrical – Wiring Methods (1910.305)

1,405

Despite OSHA’s efforts to create and maintain a safe workplace, employers have the responsibility to ensure safety and to prevent serious injuries, including death. But, safety standards are often ignored and corners are cut to save time and money.

Preventable deaths in South Boston

Just last year, Kelvin Mattocks and Robert Higgins, two employees of Atlantic Drain Services Inc., in South Boston tragically died on October 21, 2016 because of unsafe working conditions.

Mattocks and Higgins were working inside a trench about twelve feet deep, when it collapsed, breaking the adjacent fire hydrant supply line, and rapidly filling the trench with water, causing them to drown.

OSHA found that the deaths of these two men were preventable if Atlantic Drain had followed basic safety protocols at their jobsite. In their investigation, OSHA found eighteen safety violations which resulted in the death of the two workers.

Who is liable under Massachusetts law?

Construction sites frequently have many different trades and laborers on site. It is common for general contractors to delegate parts of the project to subcontractors. This includes safety obligations. As a result, people working on jobsites are exposed to the risk of injury caused not caused by their own employer. In legal language, these are known as “third-parties”.

In Massachusetts, employers have near-complete immunity from any lawsuit for work-related accidents. However, third parties that cause or contribute to workplace injuries and deaths are not protected in the same way.

If an employee was hurt at work because of the actions (or inactions) of a contractor, subcontractor, supervisory entity, or faulty work equipment, they probably would be able to bring a claim for damages or wrongful death.

Also, OSHA holds employers responsible in ways that don’t always follow direct subcontractor relationships. OSHA’s multi-employer worksite policy categorizes the duty of safety across four groups – controlling, creating, exposing, and correcting. Who is responsible for an accident or injury may not be obvious. And, of course, nobody wants to admit liability. This kind of case often requires the help of a lawyer.

Does workers’ compensation apply?

Even if there is no third-party liability claim, employees injured at the worksite are generally eligible for workers’ compensation benefits.

For more information on these topics, please see: Workers' Compensation Law and Third Party Liability and Construction Site Injuries: A General Contractor's Responsibility to the Public.

Get expert advice

If you have been hurt or injured on the job, you should talk to a lawyer. SUGARMAN attorneys will give you straight answers about whether you may have a viable legal claim. For more information or assistance regarding work-related injuries and third-party liability claims, call SUGARMAN at 617-542-1000 or email info@sugarman.com.