Baker & O'Brien, Inc.

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Who Has Construction Safety Responsibilities – the Owner or the Contractor?

Litigation, North America

January 1, 2019

As part of an oil terminal construction project, the Owner hired a Contractor to erect a cone-roof firewater storage tank at the site.  As one would imagine, construction of a tank requires work at height – along with its attendant fall hazards.

A welder and his helper were attaching tank roof rafters from the tank wall to a roof support center pole.  The construction procedure called for them to perform their work at the center pole from inside a manlift basket at a height of approximately 60 feet.  Rather than working in the manlift, the workers found it easier to work on a surface attached a few feet below the top of the center pole. 

The construction procedure called for welding the rafters from the walls to the center pole in such a sequence that they would alternate quadrants of the tank.  Instead, the workers welded one rafter after the other in a clockwise progression around the tank top.  After they had completed about a third of the way around, the center column, where the two workers were standing, collapsed to the floor.  When the workers had previously left their manlift to stand on the center column surface, they did not attach their fall arrest harnesses to the manlift.  Consequently, they both fell to the ground and were killed by the impact of the fall.

Often in personal injury cases, a breach is claimed of the Occupational Safety and Health Act General Duty Clause.  The General Duty Clause states that each employer shall furnish a place free from recognized hazards to each of its employees.  Here, Baker & O’Brien was asked to opine on the Owner and Contractor safety responsibilities for control of work and for knowledge of the safety hazards associated with the work.  We reviewed depositions and construction documents, including contract requirements, to determine the responsibilities for:  1) the method of construction; and 2) worker safety during the construction activity.  We also assessed which of the parties had awareness or knowledge about potential hazards with execution of the construction.  Finally, we considered if the responsible parties acted in a reasonable and prudent manner in establishing a safe work environment in which to perform their work. 

The Baker & O’Brien consultant was the designated expert for court proceedings and provided an expert opinion in a written report.