Inside this Issue
- A1 - Court Excludes Evidence of Subcontractor’s Workplace Safety Violations Because Deceased Worker Was Not its Employee
- A2 - Guide to Pre-Construction Meetings
- A3 - Statute of Limitations on Obvious Defect Enforced to Dismiss A/E from Suit: Standard of Care May Exceed Code Requirements
- A4 - Reservation of Rights to Make a Cumulative Impact Claim
- A5 - Letter to Construction Attorneys – Invitation to Join ABA Forum on Construction Industry
Article 1
Court Excludes Evidence of Subcontractor’s Workplace Safety Violations Because Deceased Worker Was Not its Employee
See similar articles: assumption of risk | Evidence | Expert Testimony | Jobsite Safety | multi-employer | OSHA
By James N. Rhodes, Esq.
ConstructionRisk Counsel, PLLC
The Maryland Court of Appeals affirmed a trial court’s exclusion of expert testimony relating to the violation of state and federal workplace safety regulations, in a negligence action stemming from the fatal fall of a worker. The court explained that showing a violation of these regulations was irrelevant to the plaintiff’s claim because the regulations only established a safety duty towards its own employees. The decedent was an employee of another subcontractor that worked on a later phase of the project than the subcontractor that created the allegedly unsafe conditions. The court also found that the facts established that the worker “assumed a risk” of injury as a matter of law, which under Maryland precedent would negate any argument that the subcontractor was negligent. C & M Builders, LLC v. Kelly Lynn Strub, 22 A.3d 867, 420 Md. 268 (2011).
C & M Builders entered into a subcontract with a general contractor in the spring of 2006 to complete the framing on the rehabilitation of a three story row house in Baltimore. Around the same time, Comfort Masters also entered into a subcontract with the general contractor to install HVAC equipment for the property. An employee of the HVAC subcontractor suffered fatal injuries at the jobsite when he fell three stories through openings where the staircases had not yet been installed. The fatality occurred after the framing subcontractor had completed its portion of the project. The family of the deceased filed a negligence action against the framing subcontractor, arguing that their negligence had caused the fatal accident.
At trial, the framing subcontractor moved to exclude the plaintiff’s expert testimony that it had failed to follow federal and state site safety regulations (i.e. federal OSHA regulations, and the Maryland “MOSHA” regulations). The subcontractor argued that any violation of these regulations was irrelevant to plaintiff’s case because the regulations only created a duty from an employer towards its employees, and the decedent was not an employee of the subcontractor. The trial court agreed to exclude testimony of the OSHA and MOSHA violations. The intermediate appeals courts reversed, but Maryland’s highest court reaffirmed the trial court’s exclusion of this evidence.
The court began by reiterating that the violation of OHSA and MOSHA regulations itself does not establish a “per se” negligence claim. These regulations are for the government’s enforcement of employment safety practices through the U.S. Department of Labor and Maryland’s equivalent state agency. But a violation of applicable regulations can serve as vital evidence in a private party negligence action to show that a defendant breached the standard of care owed toward the plaintiff. Here, however, the court found that any evidence of the subcontractor violating these regulations should not be allowed at trial because the regulations do not create duties of a company towards non-employees.
The court noted that there is a split of opinion among federal courts as to the extent that certain OSHA regulations can apply to non-employees in “multi-employer” workplace settings. The Department of Labor has implemented a “Multi-Employer Worksite Citation Policy” to enforce workplace safety violations involving nonemployees, but some federal courts have found that this enforcement exceeds the agency’s authority. However, to the extent that the regulations do apply towards non-employees, it is more limited in scope than towards employees. The court explained that even if the subcontractor had created the hazard, they did “not exercise continuing control, or even a presence, at the worksite” at the time of the fatal accident. As a result, the court explained that the facts did not warrant the “adoption or application” of the multi-employer worksite doctrine.
The other major issue on appeal involved the “assumption of risk”. The high court found that the decedent’s actions met the legal requirements of assumption of risk, holding that the evidence showed as a matter of law that the worker knowingly disregarded the safety risk before the tragedy. Under Maryland legal precedent, an assumption of risk “negates the issue of the defendant’s negligence by virtue of the plaintiff’s previous abandonment of his or her right to maintain an action if an accident occurs.” Accordingly, the plaintiff’s suit could not proceed, even if the defendant had been negligent.
This article is published in ConstructionRisk.com Report, Vol. 16, No. 6 (June 2014).
Copyright 2014, ConstructionRisk, LLC
Article 2
Guide to Pre-Construction Meetings
See similar articles: Pre-construction meeting
By: R. Burns Logan, Esq.
LLOYD, GRAY, WHITEHEAD & MONROE, P.C.
One of the easiest and most successful ways you can limit your risk on any construction project is to have a pre-construction meeting. We work with several clients who conduct regular pre-construction meetings and it has lead to an overall increase in project efficiencies, decrease in work-related accidents, and, ultimately, larger project profits. As such, we encourage all our construction clients to conduct a pre-construction meeting for every project.
Who Should Be Involved in the Pre-Construction Meeting?
Your pre-construction meeting should include the relevant managers and upper level stakeholders within your company involved in the project. This varies with each project, but below is a list of personnel which should likely be involved:
1) Project Executive;
2) Project Manager;
3) Project Superintendent;
4) Safety Manager;
5) Legal Counsel;
6) Human Resource Manager;
7) Procurement Manager;
8) Project Accountant;
9) Bonding Manager; and
10) Chief Estimator.
Each of these parties should determine the top issues they believe will affect their scope of responsibilities on this particular project. Ideally, each participant will identify four or five issues each to discuss. However, on some large projects, there may be a significant number of other issues to discuss pre-construction.
For example, the Safety Manager may want to discuss any fall hazards or excavating issues particular to this site. The Procurement Manager may want to discuss how purchasing on this project may be consolidated with other projects to increase purchasing power. The idea is that everyone gets a chance to think through the best ways to make the project successful.
Legal Issues to Discuss at Pre-Construction Meeting
I have seven (7) things which I routinely discuss at pre-construction meetings. The point of this discussion is to focus the day-to-day project management team on the relevant legal issues and what they can do to resolve legal issues before they spin out of control. Like with all other disciplines, there are other issues that may be considered on each particular project, but below are my primary discussion points:
1) Change order provisions. Be sure you understand what your contract says about how, when, and what a change order request can include. It is imperative that issues related to potential change orders be identified quickly and decisively in order to ensure you get paid. This could mean everything from the proper procedure for documenting design changes to managing changes for unknown conditions.
2) Damages for delay issues. Almost every construction project runs into schedule challenges which must be overcome. Many of these challenges are faced successfully simply because the parties knew beforehand how to comply with their contract. If there are weather delays or design delays, the project team needs to know exactly what needs to be documented and in what time frame.
3) Liquidated damages clause. Everyone on the project needs to know what the liquidated damages clause includes. This will guide business decisions regarding whether to request change orders or possibly to accelerate the schedule of the work when needed.
4) Time and money for concealed conditions. The parties need to understand, especially at the pre-construction stage, what the contractor’s rights are related to concealed conditions. Often when sub-grade work is being performed, quick decisions need to be made about how to address unforeseen issues. If the parties understand what their obligations are when these issues arise, the process can move much more quickly.
5) Who is responsible for informing of design defects and other issues. Many construction contracts require contractors and subcontractors to identify design defects which they recognize on a project. If your project team recognizes a design defect, it needs to know what should be done immediately to remedy this issue. Design defects which are ignored by the project team create huge problems down the road when systems do not work or the building does not meet the owner’s expectations.
6) Notice requirements. All project personnel need to know what, when, and how to provide notice on a project. This is by far the best way to avoid construction lawsuits on your project. The notice provision is intended to give all parties reasonable facts surrounding potential claims and issues so that the parties can come together and attempt to create a resolution which is acceptable to everyone. If you do not provide proper notice, this cannot happen.
7) Timetable for responding to RFIs and Submittals. Oftentimes, the construction schedule is impacted by delays related to Requests for Information and Submittals. The project team needs to have a solid system in place which takes into account the particular contract specifics to deal with these issues.
On my blog, I have provided a “Pre-Construction Meeting Legal Worksheet” you can quickly go through with your project team to discuss these particular issues. See the legal worksheet here: Pre-Construction Meeting Legal Worksheet
Conclusion
Pre-construction meetings are one of the most effective ways you can manage risks on your project. Enrolling the help of your project teams at the beginning of the project will help identify issues and sidestep traps that are inherent in every construction project.
R. Burns Logan, Attorney At Law
LLOYD, GRAY, WHITEHEAD & MONROE, P.C.
p: 205.967.8822 f: 205.967.2380 e: blogan@lgwmlaw.com
a: 2501 Twentieth Place South / Suite 300 / Birmingham, AL 35223
Southeast Construction Law Blog
This article is published in ConstructionRisk.com Report, Vol. 16, No. 6 (June 2014).
Copyright 2014, ConstructionRisk, LLC
Article 3
Statute of Limitations on Obvious Defect Enforced to Dismiss A/E from Suit: Standard of Care May Exceed Code Requirements
See similar articles: Code Compliance | Jobsite Safety | Negligence | Professional Standard of Care | Statute of Limitations | Statute of Repose | Time Limitations
By J. Kent Holland Jr., Esq.
Trial court granted summary judgment to an architect, applying a four-year limitations period applicable to injury and wrongful death claims arising out of a “patent deficiency” in design or construction that is “apparent by reasonable inspection.” This was affirmed on appeal because the defect was “patent” and easily discovered, rather than “latent” and difficult to ascertain. The case arose from the tragic death of a two-year-old child who fell to his death from the third floor of Staples Center in Los Angeles. The parent’s also claimed against the owner of the arena, arguing it negligently breached a duty of care owed to patrons. The appellate court held that summary judgment was incorrectly granted to the owner since it was foreseeable that someone would sit or stand on the shelf, and could suffer injuries or death from a fall. Even if the arena owner could prove it had conformed to building codes, that would not be a complete defense in a negligence action. The individual facts would have to be considered to determine what “reasonable care” required. Henry Tang v. NBBJ, LP, 2014 WL 555163 (Cal. Appl. 2 Dist. (2014).
The child fell 25 feet from a shelf/banister that ran along the front of seats in a luxury sky box. The shelf was attached to the top a 16-inch solid wall, and extended toward the first row seats for use of beverages and food. A glass partition was affixed to portions of the top of the shelf, in some places being 26 inches high and in other places being only 10 inches high. His mother, in order to take photos of him, had placed the child on the shelf. After each picture the mother checked the image quality on her iPhone before taking another, and when she looked up to take the fourth picture the boy was no longer there – having apparently moved over to a section of glass that was only 10 inches high and then toppling over it.
In the deposition of the arena’s general manger, he acknowledged he knew that people stood or sat on the shelf and this was dangerous. The arena took no action to prevent climbing or sitting on the drink shelf other than to have security personnel tell them to get off. The city building inspector testified that he did not approve the shelf in front of the glass partition and that it had not been submitted for approval before the arena was built. He also testified that if the construction plan had been submitted with an 11-inch wide shelf it would have been rejected.
An expert witness for the plaintiff opined that even if the glass partition was code compliant, it constituted a dangerous condition because the shelf invited patrons to sit or stand on it, and they often did so. The danger was magnified by the drop in the glass barrier from 26 inches to 10 inches along the shelf, and there were no warning signs informing patrons not to sit, stand, climb or walk on the shelf. Another expert opined that the guardrail violated the California OSHA requirements of 34-inch barriers for arena balconies. The arena acknowledged that the building code required a 26 inch barrier in front of seats, but argued that the issue was where the 26 inch measures was to start from – Was it from the carpeted floor? Was it from the top of the wood shelf? Was it from the seat bottom?
The arena argued that it didn't owe a duty of care to warn or repair because the child was under parental supervision when he fell, and the glass barrier was an open and obvious condition.
In rejecting the owner’s argument, the court once the LA arena became aware of patrons’ misuse of the shelf, if could have averted the harm by removing the shelf, or by using a higher glass barriers, or at least by placing warning signs on the shelf instructing patrons not to sit or stand on it. Citing case law for the proposition that liability may be imposed if the “type of accident may be reasonably anticipated even if such an accident had not occurred before,” the court stated, “As a landowner, LA Arena is not entitled to ‘one free fatal plunge’ before its duty to act in the face of a known danger is triggered.”
It is particularly noteworthy that the court made a point of explaining that “Courts have generally not looked with favor upon the use of statutory compliance as a defense to tort liability,” stating that a code merely establishes the “minimum standard of conduct,” but does not preclude a finding that “a reasonable person would have taken additional precautions under the circumstances.”
With regard to dismissing the action against the architect, the court stated that whether a construction defect is readily discoverable by the average consumer, during the course of a reasonable inspection, is a question of fact to be decided by a jury “unless the defect is obvious in the context of common experience,” in which case a determination of “patent defect” may be made as a matter of law.
The fact that the glass varied from 26 inches to 10 inches in height along the shelf was not a “hidden deficiency, unapparent by reasonable inspection.” Likewise, the absence of a catch-fall device below the glass (such as what plaintiff asserted was required by law) was reasonably discoverable by a reasonably observant person. “This is not a defect hidden from the average person, even if it was not understood by two-year old [child].” A wrongful death action against the architect, therefore, had to be commenced within four years after substantial completion of the arena.
Comment: Among other things, this case shows the importance of statute of limitations and statute of repose specific to the design and construction of buildings. In addition, the discussion of code compliance with regard to the height of guardrail barriers, and the question of whether code compliance would have been a complete defense to the claim provides valuable guidance. Failure to comply with code requirements may be used against a defendant by a plaintiff in seeking to prove a failure to meet the standard of care. But it may take more than proof of code compliance to persuade a trier of fact that the standard of care applicable to particular conditions and circumstances was satisfied.
About the author: Article written by J. Kent Holland, Jr., a construction lawyer located in Tysons Corner, Virginia, with a national practice (formerly with Wickwire Gavin, P.C. and now with Construction Risk Counsel, PLLC) representing design professionals, contractors and project owners. He is founder and president of a consulting firm, ConstructionRisk, LLC, providing consulting services to owners, design professionals, contractors and attorneys on construction projects. He is publisher of ConstructionRisk.com Report and may be reached at Kent@ConstructionRisk.com or by calling 703-623-1932. This article is published in ConstructionRisk.com Report, Vol. 16, No. 6 (June 2014).
Copyright 2014, ConstructionRisk, LLC
Article 4
Reservation of Rights to Make a Cumulative Impact Claim
See similar articles: Change Orders | Release Language
Imprecise wording on change order forms often causes problems relating to what costs are included in the agreed price for the change. Contractors may argue that the change order language, such as compensation for"indirect costs, or time-related costs," does not include loss of productivity or cumulative impact costs. The contractor argues,in defense of its position, that there is no way that it could have known the actual impact of later owner-caused changes at the time that the earlier change order was priced. Therefore, the contractor waited until the end of the job to quantify and request its impact or loss of productivity claim, and called it a "cumulative impact claim." The owner, however, often refuses to pay any more than the price earlier agreed for change orders.
Thus, an owner's primary defense to a disruption and/or cumulative impact claim is often to argue that, in executing the various change orders, the contractor agreed to the price of the change and thereby waived its rights to seek any further compensation. The argument advanced is that the contractor, by signing the change order, included any possible costs that would be associated with the cumulative impact claim and accepted any risk that the costs would be more than anticipated.
Richard J. Long, P.E.
Chief Executive Officer
Long International, Inc.
10029 Whistling Elk Drive
Littleton, Colorado 80127
(303) 972-2443 Telephone
(303) 972-6980 Facsimile
(303) 884-3060 Mobile
rlong@long-intl.com
This article is published in ConstructionRisk.com Report, Vol. 16, No. 6 (June 2014).
Copyright 2014, ConstructionRisk, LLC
Article 5
Letter to Construction Attorneys – Invitation to Join ABA Forum on Construction Industry
See similar articles: Construction Forum
If you are a construction attorney, or an attorney interested in learning more about construction project and practice issues, and have not already joined the ABA Forum on the Construction Industry, I encourage you do to do. Three times a year, hundreds of construction lawyers come together for a two-day continuing education conference focused on current important issues of construction law and risk management. Through the 13 Divisions of the Forum, members can join others in focusing on specific areas of greatest interest to them in their practice. In addition to the CLE conferences, the Divisions conduct numerous webinars and educational programs. The Forum also publishes books on construction law topics such as contracts, procurement methods, and design professional and construction manager law. Two books published this year are Construction ADR and Construction Subcontracting. Members of the Forum get special pricing opportunities for the books. For more information, see, www.americanbar.org/groups/construction_industry.
Full Letter
May 29, 2014
Dear Colleagues,
As Chair of the ABA Forum on the Construction Industry, I extend this special invitation to join the Forum. Please consider the following things about the Forum which I hope will persuade you to become a member.
First, the Forum hosts three national programs per calendar year at great venues. Our programs are known for their quality. Our Annual Meeting just took place in April in New Orleans. It was a great success, attended by over 560 participants. Our next program, the Forum’s Fall Meeting, is set for October 15-17, 2014 in Chicago. The Forum’s MidWinter meeting is scheduled for January 29-30, 2015 in Scottsdale, Arizona. The upcoming national programs consist of almost two days of educational programming, networking and social events. Our programs provide CLE on a substantive area of interest, consistent with our motto of "Building the Best Construction Lawyers."
If you are a young lawyer, new to the practice of construction law, and looking for a way to network with your peers, we invite you to become involved with our young lawyers division. They are a very active group, offering social events, networking opportunities, speaking and writing opportunities, as well as projects that give back to our industry. They also host the community service project at our Annual Meeting.
In addition to the young lawyers division, the Forum also has thirteen other divisions focused on substantive areas within construction law. Our newest division, Division 13, focuses upon government construction issues. You can join as many divisions as you want free of charge with your Forum membership. The divisions are the best way for you to realize the true benefits of Forum membership, which extend well beyond just CLE, and include speaking opportunities, writing opportunities, legal resources, and the opportunity to make friendships that will last a lifetime.
As a first time attendee at one of our meetings, we will pair you with an experienced member of the Forum to guide you through not only your first meeting, but to explain how to become involved in the Forum.
As a member benefit, the Forum also offers distance based learning opportunities, including regularly scheduled webinars on a variety of topics relevant to construction law or the construction industry. These are programs you can enjoy from the comfort of your own office and without travel expense. The Forum also distributes free to its members two outstanding legal publications: The Construction Lawyer, which is a law journal distributed in hard copy and filled with quality legal articles on pertinent and cutting edge topics; and our electronic newsletter, Under Construction, which is packed with smaller, but no less quality, articles.
Finally, the Forum publishes excellent books on a wide variety of construction law topics. Two books published this year are Construction ADR and Construction Subcontracting. Members of the Forum get special pricing opportunities for our books. We encourage you to view our online catalogue.
The cost of joining the Forum now is only $50 through this bar year (September 1) and only $60 per year going forward. You will more than make back the cost in member benefits by attending one meeting or buying one book at members’ rates. Join us here.
I could go on about the benefits of becoming a member of the Forum, and how it has benefitted me both personally and professionally, but please join us and find out for yourself. I hope to see you at our Fall Meeting in Chicago in October.
Sincerely,
Terrence L. Brookie
2013-2014 Forum Chair
tbrookie@fbtlaw.com
AMERICAN BAR ASSOCIATION
Forum on the Construction Industry
321 N. Clark Street, MS 18.2
Chicago, IL 60654
Phone (312) 988-5579
www.americanbar.org/groups/construction_industry
Connect