Safety is always important to a responsible contractor. Concrete work in particular presents hazards including exposure to caustic cement materials and the use of potentially dangerous tools like early-entry or concrete/masonry saws, as well as the myriad safety concerns present on any construciton site. Contractors are well served to have safety protocols and training to minimize these risks.
The current trend of certain plaintiffs’ attorneys, though, is to try to use those safety rules as offenseve weapons in a lawsuit. Consider statements like “safety is a top priority” or “a contractor would never needlessly endanger an employee of one of its subs.”
Each of these statements sounds reasonable in the abstract and would probably be reflected in most contractors’ safety manuals and programs, but in the hands of certain plaintiff’s lawyers, each is a statement that can be used against a contractor in a lawsuit.
Construction work can expose a contractor to personal injury lawsuits by third parties, whether they are employees of a different trade on the job or third parties outside of the subcontractor/supplier chain. In these cases, potential liability could extend not only to payment of medical bills and lost wages, but also pain-and-suffering and other general damages which can dramatically increase liability exposure levels to the contractor.
An increasingly popular plaintiff strategy in such cases is to focus on general safety rules in order to villify the contractor as unconcerned with safety. To do so, the plaintiff’s attorney will typically try, in a deposition, to nail company officials down to seemingly innocuous statements like the ones above. The goal of these questions is to establish that, since an injury occurred, it must have been a violation of a safety rule, and the known violation of a safety rule is something that ought to be punished by the jury.
The plaintiff’s counsel in these cases will obtain the contractor’s safety manual, a request for which could quickly become a double-edged sword. If the contractor does not have detailed safety guidelines, the argument will be that safety is not a concern and is not addressed appropriately by the company.
TYING YOU TO THE DETAILS
If the contractor has a health and safety program and detailed safety guidelines, as most do, the plaintiff’s counsel will then use these safety guidelines to point to violations of the safety rules where they can be found. This is especially fertile ground since safety rules usually contain such broad instructions as reporting “all unsafe conditions and/or work practices,” “monitoring subcontractor performance in terms of safety,” or “issuing any safety equipment required for a job to all company employees.” Even where such broad rules are followed on a job, the danger is that plaintiff’s counsel can quote the company’s own safety programs and then point to any technical or minute violation of those requirements that show a safety violation causing the injury.
Asking about seemingly innocuous statements about safety is designed to give the witness the impression that the answer of a reasonable person ought to be “yes” or “no.” It seems unreasonable not to agree with the statement that “safety is always the top priority” and the strategy is to get the witness in a rhythm of answering yes or no, agreeing to broader and broader safety policy statements as absolutes, and ignoring the particularities of any given situation in which different approaches might be taken, exceptions might be made, or even situations in which the particular rule does not apply.
This strategy is premised on a simplistic understanding of safety, when, in the field, almost no situation is as simple or clear cut as these questions would indicate. This flawed premise is where the strategy can be combatted.
Virtually every construction task involves some level of risk and almost every rule has some exception. While safety is a top priority, an action as central to concrete contracting as reinforcement construction involves risks associated with the use of heavy materials, torches and welding equipment, and potentially work at heights and/or supported by cranes or lifts. If safety was the only priority, as broad statements imply, the work could not be completed at all. The fallacy in this trial strategy that safety is the only priority ignores the realities that sometimes risks need to be taken to accomplish the goal.
ALL ABOUT THE CIRCUMSTANCES
When preparing to testify in a case like this, it is important for the contractor’s witness to work with his or her attorney to reframe the discussion in terms of the company’s reasonable conduct under the circumstances. In a negligence case, the jury will ultimately be asked to determine whether the defendant behaved as a reasonable person would in that situation. The plaintiff’s goal in emphasizing broad and simple safety rules is to try to replace that “reasonable” standard with a black and white safety rule. The on-site situation needs to be shown to have been as complex as it actually was to assist the company in defending the contracor’s conduct as reasonable under those circumstances. Regulations and safety rules are based on generalizations and do not always apply to each individual situation, so an experienced contractor and its employees need to rely on their training experience to deal with situations as they arise in the field.
It remains important to have and follow clear-cut safety guidelines, particularly in high risk fields like construction. In litigation, however, it is important to carefully and intentionally frame the discussion that the contractor’s testimony will provide to the jury in order to explain the conduct in the circumstances as they actually existed in the field. Safety rules cannot be viewed in a vacuum and real-world circumstances dictate that contractors will use their experience and training to implement safety rules so that they serve their real purpose—helping to prevent accidents—rather than to simply to make the contractor look bad at trial. ■
About The Author: Thomas More Buckley, Esq., is a partner with Hedrick, Gardner, Kincheloe & Garofalo (www.hedrickgardner.com), one of the largest litigation and dispute resolution firms in the Carolinas. His practice focuses on business litigation, with a particular emphasis on defending contractors in construction disputes. He also is a member of the Construction Law and Litigation Committee of the International Association of Defense Counsel. Buckley can be reached at .
Modern Contractor Solutions – March 2016
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