contractor liability
DESCRIPTION
Test runTRANSCRIPT
Contractor Control
Garry Kroft, CSP, MSS&N Consulting, LLC
Senior Risk Control Consultant
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Disclaimer• Nothing within this document and/or presentation contains
legal advice. For all questions or concerns regarding potential liability which might arise from your actions or omissions, consult your own attorney. The information contained herein is provided “as is” without any warranty or guaranty of any kind. The entire risk as to the use of the information contained herein is assumed by you.
• S&N Consulting expressly disclaims all warranties whether implied, expressed or statutory, including, without limitations, implied warranties of merchantability, fitness for use and fitness for a particular purpose. We absolve that we have no liability to any party for any damages including, but not limited to, direct, indirect, special or consequential damages arising out of or in connection with any information contained herein.
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While We Are Together
• 14 Accidental Deaths (every 4.3 mins)– 5– 1– 5– 3
• 3,000 Accidental Injuries (every 1.2 secs)• $78 million ($1.2 million every second)• How many construction-related deaths today?
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Liability• In simplest terms:
… means that you are responsible for damage that someone or something has suffered.
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BASES of Liability• Negligence– not acting in accordance with standards of
conduct established by the community.• Strict Liability– arises regardless of the care you take if you
engage in an “ultra hazardous” operation, such as blasting.
• Indemnification– you may have assumed the liability of another if
you have agreed to do so (i.e., you have indemnified another party).
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Prudent Person Rule• This reflects the standard of conduct
expected by the community.• Did you do the things that a “prudent
person” would have done?• Did you not do things a prudent person
would not have done?• By the way–prudent essentially means
“taking care”.
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Standards• A prudent person must follow
nationally accepted standards.• Laws and regulations reflect
standards, examples include: OSHA, DOT, ANSI, ASME, NEC, etc.
• Failure to set or meet appropriate standards may be considered NEGLIGENCE.
• Standards may be established by court cases (precedence).
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If You Were NOT Prudent...• You may be facing
charges that you were NEGLIGENT.
• This can be SIMPLE negligence (that was dumb)
• Or AGGRAVATED negligence (that was REALLY dumb)
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The Difference Is...• While there are many differences, one key
difference is DAMAGES.
• In simple negligence, you may be asked to pay for actual and future losses — say, wages, medical bills, etc.
• But AGGRAVATED negligence can trigger PUNITIVE DAMAGES.
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Punitive Damages• Brought in when your wrongdoing was so bad as to
border on intentional — or was intentional
• Punitive damages are intended to PUNISH the wrongdoer — so they stop
• They are frequently LARGER than actual damages
• And in many states — insurance companies cannot or will not pay for such damages (punitive)
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Liability Principles
• Base your decisions, opinions, suggestions, and recommendations on recognized standards and practices.
• Always be professional!– This means functioning within one’s training and
experience.
• Fully understand the scope and context of the work to be performed.
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Liability Principles
• Do not agree to perform work when:– The scope and context is unclear– Open-ended– Violates any guidelines, policies or standards– Violates any professional ethics
• Never say or imply that you are responsible for the safety of others.
• Avoid words like “totally safe or free” of hazards or problems.
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Liability Principles
• Never state or imply the certainty of an outcome.
• Be specific in documentation as to objectives, accomplishments and scope of work to be performed.
• When in doubt, check with legal council.
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Imminent Danger Situations
• Develop procedures to handle such situations.– Couple of examples of such situations.
• Immediately notify the most senior person in charge of the specific situation.
• When appropriate/applicable, cite specific rules and standards being violated.
• If immediate action is not taken to remedy the situation, go to the next highest authority.
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Imminent Danger Situations
• Help the responsible person understand what corrective action is expected.– It is up to them to correct the situation.
• Report the situation to management immediately.– Indicate what actions have been taken (or not).– Indicate if corrective actions eliminated the
danger (or not).– Document the situation and corrective action(s).
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Safety Surveys
• Conduct surveys and offer advise so as not to put yourself or others or property at risk.
• Do not speculate on insurance coverage.• Do not be all inclusive (surveyed everything,
made a complete survey of plant or jobsite).• When investigating accidents, just get the facts
surrounding the incident.• Not your job to “fix blame”.• Imminent Danger Situations – previous slides
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Confidentiality Agreements
• Seek legal council advise.
• By nature, such agreements impose liability.
• Should have a written policy to handle such agreements authored by legal council.
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Hold Harmless Agreements
• General intent– To absolve the document owner of (all) liability or– To shift responsibility for alleged or actual injury
or damage liability
• Generally– Such documents should not be signed w/o legal
advise, and– Legal assistance is always a “great” idea
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Contracts
• Never sign a written contract w/o legal review.
• Never make verbal agreements you can not make happen.
• Always get legal assistance.
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Copyright Issues
• Reproduction of copyright materials should be prohibited.
• No use of such materials in training programs without written permission of the author.
• Copying and use of public domain materials (OSHA) should be encouraged.
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• Newest form of written correspondence.• Be careful what you put down in writing.• All Email can and will be used as evidence.• Have any Email policies in your company?• If not, consult legal assistance NOW!!!!• If yes, read, know, and practice all policies.• Should be clear, concise, accurate and brief.
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• Should only be distributed to those who have a need to know.
• If you wouldn’t want to see the information on the evening news, don’t write it down.
• Stay away from unflattering comments or opinions of people or companies.
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Recommendations
• Corrective recommendations s/b made for:– Noted hazards,– Exposures, and– Ineffective control of risks
• If possible:– Cite the standard violated.
• Set target date(s) for completion.
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Public Liability and Protection
• Public Relations– Notify nearby property owners of project’s basic
scope of work and schedule.
– Focus on positive efforts to reduce noise, dust, vibration, and traffic disruptions.
– Give nearby property owners a business card.
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Public Liability and Protection
• Attractive Nuisance– An object or an environment that may attract a
person or persons.– Protect children especially. (your highest duty)– Examples include:• Tower Cranes and Heavy equipment• Excavated material (spoils piles)• Trenches and Confined spaces• Manholes and Tunnels
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Public Liability and Protection
• Pedestrians– Sign the site (No Trespassing)– Fence the site– Cover nearby walkways– Illuminate the site– Maintain good housekeeping– Eliminate all tripping hazards (see above bullet)
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Public Liability and Protection
• Traffic Control– Follow DOT regulations for signage.– Document (take pictures) of traffic control devices
and warning signs.– Check traffic control devices/signage daily.– Direct traffic around/away from the site.– Use only trained flaggers.
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Public Liability and Protection
• Property Protection– Especially against these activities:• Underpinning• Pile driving• Blasting• Dewatering• Excavating• Tunneling• Shoring
– Anything that creates vibration and dust
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Public Liability and Protection
• Property Protection– Pre-construction Survey Documentation:• Photographs
• Videotapes
• Seismograph measurements
• Others?
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Final Discussion
• Your questions
• Your stories
• Your perspectives
• Have a safe day!!!!
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