Richard A. Rice

It is paramount for claims and legal professionals to understand the importance of the Competent Person in Construction

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The safety of construction workers in the United States is governed, at a minimum, by the laws propagated by the Occupational Safety and Health Administration (OSHA). The vast majority of OSHA laws address minimum/maximum distances, safety factors and performance for construction-related items. For each of these, the “Competent Person” is responsible for the general safety of the construction site and making sure OSHA laws are obeyed.

OSHA defines the Competent Person as “a person who is capable of recognizing and evaluating employee exposure to hazardous substances or to other unsafe conditions and is capable of specifying the necessary protection and precautions to be taken to ensure the safety of employees as required by the particular regulation under the condition to which it applies.” It is paramount for claims and legal professionals to understand the importance and activities of the Competent Person involved in their construction cases as well as the consequences if the Competent Person does not do their job properly.

A Little Background: The Construction Contract

In construction contracts, (e.g., buildings, roads) it is customary for the project Owner to require that the General Contractor (GC) have a Competent Person ̶ or team of Competent Persons ̶ to watch the construction activity, make sure the project is being constructed as designed and ensure that all OSHA safety protocols are followed. The GC’s contract with the various subcontractors (subs) on a construction site will state that the subs will provide their own Competent Persons to oversee their own work.

While all the players on a construction site are responsible for construction safety, contractually, the GC is the ultimate authority for recognizing and correcting construction safety issues. If the designated Competent Persons fail to ensure the safety of workers on site, the General Contractor could be found responsible for any incidents that occur.

Example: The OSHA Competent Person Does Their Job

A large GC was contracted to renovate a multi-level shopping center. Part of the renovation involved the removal and replacement of an escalator. After removing the escalator, a 6-foot-wide by 20-foot-long open hole was created in an elevated concrete floor that would be present for several days. Unfortunately, a rental company technician fell through the hole and died.

The GC was sued by the estate of the technician. In response, the attorneys for the GC requested an evaluation of the GC’s fall protection protocols, which revealed that the GC installed all the barricades and warnings as required by OSHA. The man who fell went past the barricades and warnings for no apparent reason. Because the fall protection evaluation found that the Competent Person did their job, the civil case against the GC was dismissed.

Example Two: The OSHA Competent Persons Fail to Ensure Worker Safety

A GC hired a subcontractor to install a commercial air conditioning system. On commercial projects with large flat roofs, holes measuring many feet in each direction are created in the roof to accommodate air conditioning and other mechanical systems. OSHA requires fall protection for any hole that is two inches in its least dimension.

In this case, the sub created a hole in the roof that was approximately 4 feet long by 4 feet wide. The contract between the GC and sub required that the sub build a temporary hole covering that was structurally sound and could not be horizontally displaced when stepped upon. Horizontal displacement of the cover is ultimately prevented by installing blocks beneath the cover and against the hole sides. However, no blocks were installed to prevent horizontal displacement. Because there were no blocks, the plywood cover moved from over the hole when a 19-year-old construction laborer ̶ who was walking on the flat roof ̶ stepped on the cover. The worker fell over 100 feet, suffering significant injuries.

The forensic investigation revealed that the GC’s Competent Persons were on site during the hole cover installation and for many days afterwards until the laborer was injured. Not once during that time did the GC-designated Competent Persons make an effort to ensure the blocks were installed beneath the plywood hole cover. The notes from the GC’s Competent Persons and meeting notes taken during the GC’s mandatory safety meetings revealed that the hole covers were never inspected. As a result, even though the sub installed the plywood hole cover, it was determined that the GC was ultimately responsible for making sure the blocks were installed.

Protect Yourself by Protecting Your Workers

The ultimate authority on traditional building, road and other construction sites is the General Contractor. As mentioned, the GC provides Competent Persons to protect the interests of the Owners and ensure a safe work environment for all construction workers. However, if the Competent Person fails to protect workers because they did not do their job properly, the GC can be held responsible. We can help you better understand construction-related safety regulations as well as provide investigation and litigation support in cases like the ones mentioned above. Learn more about Jensen Hughes’ litigation support specialists and forensics services.

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