Construction accidents often result in catastrophic or fatal losses. Furthermore, construction accidents invite Occupational Safety and Health Administration (OSHA) investigations, which may lead to citations for safety violations and have significant impact on the way claims professionals handle the losses. OSHA investigations provide large amounts of quality data, but accessing the information can be an arduous task with varying success rates. While court decisions are key, finding precedents is a challenge since rulings vary from jurisdiction to jurisdiction. With all this in play on construction accident claims, adjusters will find knowledge of OSHA procedures and regulations necessary and eminently helpful.

One of the first areas of inquiry should be whether or not there was an OSHA investigation as a result of the accident in question and, if so, whether or not it resulted in the issuance of a citation. In order to cite a general contractor with a violation, OSHA must prove that the employer failed to comply with an applicable standard or the general duty clause, that employees had access or were exposed to the offending condition, and that the employer had actual or constructive knowledge of the offending condition.

OSHA (generally under 29 CFR 1900 et seq.) imposes many requirements upon an employer. They broadly include: specific standards, training, hazard assessments, hazard communications, tool maintenance, accident reporting, record-keeping, record access, OSHA survey, hazard abatement and the general duty clause. OSHA’s Field Operations Manual is a lengthy but valuable source of information for all that is OSHA. Claims professionals can also search accident investigation summaries and basic inspection information (including whether or not citations were issued) at www.osha.gov/pls/imis/accidentsearch.html.

Liability Under the General Duty Clause
Claims professionals should be aware that plaintiff’s counsel will attempt to use an OSHA citation, standard and/or regulation to prove liability against general contractors. If unable to cite a specific OSHA regulation or standard, plaintiff’s counsel will inevitably turn to the general duty clause to support the proposition that the general contractor owed a non-delegable duty of care to the plaintiff.

In Title 29 of the U.S. Code Annotated § 654, “Duties of Employers and Employees,” the general duty clause states that “each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees and shall comply with occupational safety and health standards promulgated under this chapter.” Furthermore, “each employee shall comply with occupational safety and health standards and all rules, regulations and orders issued pursuant to this chapter which are applicable to his own actions and conduct.”