The regulations set forth by the Occupational Safety and Health Administration (OSHA) provide detailed technical guidance about how to avoid hazards related to specific construction tasks. Despite this, OSHA does not provide detailed guidance about day-to-day safety management requirements on commercial construction sites. Thus, under the General Safety and Health Provisions of the Safety and Health Regulations for Construction, an employee may not "work in surroundings or under working conditions which are unsanitary, hazardous, or dangerous to his health or safety." To accomplish this objective, contractors are merely instructed "to initiate and maintain such programs as may be necessary to comply with this part."

OSHA regulations aside, there are two standards promulgated by the American National Standards Institute (ANSI) that dictate what must be done to ensure a safe work environment for employees who work on commercial construction sites. First, ANSI standard A10:33-2011 sets forth the requirements for multi-employer safety and health plans on commercial construction sites. Second, ANSI standard A10-38-2000 provides information about basic elements that must be in place in an employer's health and safety program. These two standards are bedrock sources of construction site safety management for five reasons.

First, in general, there is an agreement between ANSI and OSHA whereby it is understood that the former organization "will furnish assistance and support and continue to encourage the development of national consensus standards for occupational safety and health issues for the use of OSHA and others." Second, OSHA has cited to ANSI standard A10:33-2011 and ANSI standard A10-38-2000 when providing the public with compliance information about what types of safety management systems must be in place on a construction site to meet the OSHA requirements under the General Safety and Health Provisions of the Safety and Health Regulations for Construction. Third, these ANSI standards were approved by the American National Standards Committee on Safety in Construction and Demolition, a subsection of ANSI. A wide variety of organizations with competing interests sat on that committee when these standards were passed. Fourth, both of these standards were co-published by the American Society of Safety Engineers (ASSE). Fifth, the American Society of Civil Engineers endorsed both ANSI standards, and has taken the position that compliance with them is necessary to improve construction site safety.

In addition to the ANSI standards, the ASSE publishes a treatise on construction safety management called Construction Safety Management and Engineering. Additionally, there are shorter treatises relative to accepted standards of construction site safety management attorneys will find helpful when representing clients in commercial construction accident cases, including Managing Subcontractor Safety, published by the Construction Industry Institute, and The Manual of Accident Prevention for Construction, published by the Associated General Contractors of America.

The attached chart is a summary of what is required under accepted standards of construction site safety in the published authority discussed in the preceding paragraphs, with citations. A working knowledge of these materials enables attorneys to come to a better understanding of how safety management on a construction site may have contributed to an accident and will help them to obtain meaningful discovery.

Safety Must Be Part of the Hiring Process

Accepted standards of construction site safety require safety to be part of the hiring criteria on a commercial construction site. Owners and general contractors are required to investigate and review the safety histories of the companies that they hire, and these reviews must be documented. Additionally, safety requirements must be incorporated into (a) the contract between an owner and general contractor, and (b) contracts between general contractors and subcontractors. All of these materials should be obtained during discovery.

Demand Copies of the Health and Safety Program and the Site-Specific Safety Plans

Safety management standards require the development of a comprehensive written safety and management plan before construction activities on a site begin. Additionally, subcontractors are required to prepare site-specific safety plans, and these plans must be reviewed by the owner/general contractor before work commences. Owners or their designated representatives must review these plans and document that such a review occurred.

Ordinarily, general contractors have a corporate health and safety policy prepared by corporate headquarters and a site-specific safety plan specifically prepared for each construction project. Subcontractors' site-specific safety plans are usually narrower in scope and tailored to the specific acts that they were hired to perform. Most of the safety rules set forth in the table on page S-14 are required to be part of written safety plans on a construction site.

All written safety plans utilized on a jobsite must be obtained during discovery because they provide information about the rules, policies and procedures that people on the jobsite were supposed to follow so that hazards could be anticipated, recognized and either removed or minimized. If a contractor or subcontractor failed to prepare written safety plans, they breached accepted standards of care. Additionally, because these plans are supposed to be reviewed, such negligence is chargeable to organizations higher up in the chain of command.

As a practical matter, contractors rarely fail to prepare preconstruction safety plans, because these documents are usually required pursuant to contractual provisions and companies need these plans to demonstrate OSHA compliance. Therefore, the value in obtaining these plans during discovery is usually twofold. First, a review of written safety plans often reveals that if safety rules on a jobsite were followed, hazards that led to an accident should have been avoided or corrected. Second, since these safety rules are required under published literature and should be incorporated into the safety plans prepared on a jobsite, defense experts cannot credibly argue that the rules in these plans were not required under accepted standards of care. This is important because thorough discovery in construction site accident cases usually eliminates the debate about what the standard of care is, so that the focus at trial is on a factual analysis of whether the defendant complied with this standard.

Identify Individuals Responsible for Safety Compliance on the Jobsite

Construction site safety standards require a written description of the safety responsibilities of all members of a general contractor's management team on the jobsite. Furthermore, a specific individual in the employ of the general contractor must be assigned responsibility for the implementation of the project safety and health plan on the jobsite. There must also be a written description of the safety management responsibilities of supervisory personnel of the subcontractors, and the safety obligations of all employees on the site must be spelled out. Safety standards also require subcontractors to designate an individual with final authority and responsibility for compliance with the safety and health plan. All of this information is customarily set forth in the general contractor's written safety plans.

In interrogatory questions, plaintiffs should seek the identity of: (1) all members of the general contractor's project management team who had safety management responsibilities; (2) the specific individual who worked for the general contractor who had responsibility for implementing the safety and health plan on the jobsite; and (3) all individuals working for subcontractors connected with the plaintiff's accident who had safety compliance responsibilities. It is more likely than not that the plaintiff's attorneys will want to depose most of these people.

Obtain Reports of Inspections and Minutes from Pre-Work Safety Meetings

Prior to beginning construction work on the jobsite, a baseline safety inspection must take place to identify potential hazards and safety issues. Accepted standards of safety management require the results of that inspection to be documented. Additionally, general contractors and subcontractors are supposed to meet before beginning work on the jobsite to discuss safety hazards, and the policies and procedures to be adopted to minimize or rectify these issues. The results of the safety inspection should be demanded, as well as minutes from all pre-work safety meetings. If a baseline safety inspection was not conducted and pre-work meetings did not take place, then the defendants violated accepted standards of safety management. If these events did occur, discovery may uncover evidence that the defendants had notice of a hazard, conduct or problem regarding safety noncompliance that contributed to the plaintiff's accident.

Obtain All Documents Related to Employee Safety Orientation and Training

All employees working on a commercial construction site must undergo safety orientation that introduces them to the safety rules on the jobsite. Additionally, employees on the jobsite who have supervisory positions must receive sufficient training to enable them to meet their safety responsibilities under the written safety and health plan. Finally, safety standards require this training and orientation to be documented.

Attorneys should demand all documents evidencing safety orientation and training, and all documents provided to employees during orientation and safety training sessions. This way, the plaintiff will be in a position to determine whether safety training obligations were met. If appropriate training was provided and documented, additional evidence developed during discovery may demonstrate that a defendant who allowed a hazard to arise and/or persist violated accepted standards of safety management in a way that was contrary to the safety training provided to employees on the jobsite.

Obtain Reports and Minutes from Inspections and Meetings Held After Work Begins

After construction activities begin on a jobsite, safety staff of the general contractor and supervisory staff of subcontractors must conduct periodic inspections (daily and weekly) to discover and correct hazards and to ensure that workers are complying with the rules set forth in the written safety and health plan. These safety inspections must be documented and reports have to be forwarded up and down the chain of command on the jobsite.

Attorneys should demand the reports from periodic inspections conducted after work commences. If the defendants failed to conduct and document periodic safety inspections, they breached accepted standards of safety management. Alternatively, if periodic safety inspections were conducted, the reports generated by these inspections will often reveal that contributing hazards or a course of safety noncompliance existed prior to the date of the plaintiff's accident.

In addition to periodic safety inspections, accepted standards of safety management require owners, general contractors and subcontractors to continually collaborate about safety issues on the jobsite. Subcontractors are required to hold weekly meetings/toolbox talks, and these must be documented. There must be a system in place that allows all workers to report safety hazards in writing up the chain of command. General contractors are required to submit monthly safety status reports to owners, which discuss the current safety and health status of the project, including the results of safety inspections and audits occurring on the jobsite. Subcontractors are also responsible for submitting monthly safety reports to the general contractor that document issues like worker training, a summary of injuries and lost work days, the number of safety meetings conducted and attendance records from those meetings.

Attorneys should demand meeting minutes from safety meetings and toolbox talks and copies of all monthly reports provided to an owner and the general contractor on the jobsite. The absence of these materials is evidence of negligence. Conversely, if these materials are produced, they may reveal valuable information about hazards that existed on the jobsite. These materials may also provide evidence that an owner and/or general contractor had "notice" of problems or conditions contributing to an accident.

Obtain All Materials Related to the Accident Investigation

Accepted standards of construction site safety management require accidents to be investigated, hazards causing accidents to be corrected and reports detailing accident investigations and corrective measures to be generated. The importance of obtaining these materials in discovery is self-evident.

Frequently, after accidents occur on construction sites, steps will be taken by a general contractor to either ameliorate a condition or warn others about a hazard. Such postaccident actions are subsequent remedial measures. Nevertheless, accepted standards of safety management prefer engineering solutions to hazards because they are more reliable and effective protection for employees than work-practice controls. Construction Safety Management and Engineering, pg. 34 (ASSE 2004). Consequently, if an employer erects barriers or utilizes caution tape following an accident to avoid exposing additional employees to a hazard, this fact may be admissible to prove that simple engineering solutions were available on the jobsite to avoid the accident that is the subject of your litigation.

A Few Words about Depositions

A complete discussion about preparing for depositions in construction accident cases is beyond the scope of this article. Suffice it to say that utilizing the standards of construction site safety management to obtain paper discovery responses outlined in the attached table will put attorneys in a better position to take more effective depositions.

When deposing eyewitnesses, in addition to examining the facts and circumstances surrounding the accident, attorneys should question employees about their safety orientation and training to make sure there was something more than paper compliance with these safety standards on the jobsite. Consider deposing subcontractor supervisory employees with safety responsibilities who were materially connected to the plaintiff's accident. In addition to examining these individuals about facts related to the plaintiff's accident and the pertinent information contained in the periodic site safety reports, determine whether these individuals were familiar with the requirements of the safety plans on the jobsite and whether compliance with these safety rules occurred.

Attorneys will always want to depose the individual employed by the general contractor who had responsibility for the implementation and enforcement of the rules set forth in the safety and health plan. Usually this person is the "site safety supervisor." During the deposition of this individual, confirm that the general contractor expected the rules set forth in safety and health plan to be followed, have the deponent explain why compliance with rules on the jobsite was important. Finally, attorneys should question the general contractor's site safety supervisor about the existence of documents that were not produced in response to the plaintiff's document demands but were required to be generated under accepted standards of care. More often than not, after site safety supervisors are deposed, a second round of document demands results in the production of additional relevant evidence.

Conclusion

According to the chain-of-events theory of construction accident causation, accidents are not simple occurrences but the result of a series of events that are linked together. Under such an analysis, it is unfair to focus exclusively on an injured worker's actions just prior to an accident, because this ignores the contributing role other parties played in influencing the worker's behavior and the outcome. The chain-of-events theory examines circumstances outside the scope of an injured worker's control to evaluate why a construction accident occurred, including the physical conditions that existed on the jobsite and the safety actions of first-line supervisors and various levels of management relative to the safety and health programs that existed on the jobsite. Construction Safety Management and Engineering, pg. 52 (ASSE 2004).

Accepted standards of construction site safety management assume (correctly) that a proactive approach to safety that involves pre-work hazard analysis, collaboration between contractors about safety issues and the development of a set of rules to avoid and minimize hazards is the best way to protect workers. Safety standards require specific individuals to make daily and weekly inspections to uncover and correct hazards, and construction sites have to be set up so that communication and collaboration about these issues continues after work commences. A good understanding of accepted standards of safety management can help attorneys uncover negligence on the part of owners, general contractors and subcontractors that contributed to a plaintiff's accident. Additionally, a working knowledge of construction site safety management requirements enables attorneys to engage in thorough discovery, which helps in buttressing and challenging expert testimony and narrowing issues at the time of trial.•