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Court Ruling Affirms Liability for Jobsite Injuries

Posted on Apr 20, 2010
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Court ruling affirms liability for jobsite injuries

By Ben Keller
The Business Journal
Monday, 19 April 2010 11:35

Construction sites are usually cluttered with workers from various companies collaborating on everything from insulation to plumbing to the electrical components of a building. As a result, the jobsite is often riddled with confusion over who’s responsible for safe work conditions and who is liable when injuries occur.

A recent ruling in the Sacramento Superior Court affirmed the legal precedent for such a situation as it upheld that accidents and mishaps may fall just as heavily on a general contractor overseeing an entire build as it does on the individual employers that commission workers and materials for a specific task. The case in question originated nearly seven years ago during a development by Fresno-based Harris Construction on the campus of Madera Community College. While on the job, an apprentice member of pipefitters union, United Association Local, working for Champion received a career-ending injury when a pressurized piece of pipe attached to a valve broke off and tore through his right calf muscle.

Both Champion and Harris were subsequently fined $500 by CalOSHA for failing to prevent the accident. Only Harris, however, appealed the citation on the grounds that they could not be held to the legal definition of a “controlling employer” charged with ensuring safety on a multi-employer worksite.

Although that argument was shut down by an administrative law judge, the CalOSHA Appeals Board overruled the decision, complementing it with the additional stipulation that California’s safety division must prove that a general contractor had knowledge of a risk before it declared fault for a workplace hazard.

The March 19 ruling by the Superior Court was seen by many as a victory for workers on multi-employer jobsites in that this requirement was in contrast with Labor Code 6400 established in 1999 holding a myriad of employers accountable.

Danielle Lucido was an attorney who represented on the behalf of United Association Local for Worksafe, a California organization advocating worker health and safety laws. In her case, she claimed that not only had the Appeals Board misapplied the law, but it had encumbered CalOSHA with an unfeasible duty to find proof of negligence.

“The Appeals Board was trying to force the division to show that the general contractor was negligent,” Lucido said. “The problem with this additional burden is it encourages general contractor to look the other way.”

Lucido said Harris Construction could have avoided costly litigation by showing their blamelessness instead of dodging their role as a controlling employee as defined in the law.

“The overall court left open possibility that the controlling employer could provide a defense,” Lucido said. “The division has never argued that they couldn’t try to win on this defense.”

CalOSHA chief Len Welsh cited the same sort of decision made in Overaa Construction v. California Occupational Safety and Health Appeals Board, a 2007 case that ultimately held that an employer has the burden of proof when it comes to casualties on the work site.

Just as in the Harris Construction case, Welsh said the reasoning in Overaa stemmed from the fact that few employers will admit fault, making it impossible for CalOSHA to deem a contractor’s responsibility other than what’s stated in a contract or by actual practice.

“The reason we argue so strenuously that these points be the employers’ burden of proof is that the employer has much more access to the situation than we do,” Welsh said. “We have no way to find out one way or the other and if they don’t say anything we don’t have any information to work with other than there was a hazard at the workplace.”

A ruling is still imminent to determine whether Harris Construction will still be subject to a citation. According to Deb Pedersdotter, an attorney for the company, the incident was the result of an inexperienced worker committing a human error that Harris could not have foreseen. She added that the case so far has opened up the possibility for general contractors to clear themselves of frivolous violations that condemn them to the same degree as the subcontractor at fault.

"It raised the awareness of the issue and it really brought to the forefront the unfairness and futility of citing the general contractor regardless,” Pedersdotter said. "Previously, the division did not recognize a defense. There is a defense available to general contractors in these situations that nobody admitted before and now no one will disagree.”

The article can be read here.

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