Smith Currie Newsletters:
- Alternative Dispute Resolution "ADR"
- Arbitration Clauses
- Attorney Fees
- Bidding & Procurement
- Construction Connection
- Construction Finance
- Construction Law
- Construction Lawyer
- Corps of Engineers' Permits
- Design Professional Liability
- Design versus Performance Specifications
- Differing Site Conditions
- Disputes and Litigation
- Entitlement to Payment
- Ethics and Compliance
- False Claims
- Ferris Doctrine
- Government Contracts
- Hurricane Flood Disaster Cleanup
- Indoor Air Quality
- Labor & Employment Law
- Labor Inefficiency Claims
- Liquidated Damages
- Miller Act
- No Damages for Delay
- Non-Lienable Costs
- Past Performance Evaluations
- Payment Issues
- Performance and Payment Bonds
- Practical Documentation
- Project Labor Agreements
- Public Private Partnerships
- Redesign Services
- Reverse False Claims Exposures
- Scope Changes
- Sick Building Syndrome
- Small Business Procurement Process
- Time Extensions
- Understated Size of Project
- Effective Negotiation of Construction Claims
- Default Termination: Construction Contract's Death Penalty
- Effective Use of Email for Construction Project Communications and Documentation
- Agency Evaluation of Past Performance of Joint Venture
- Architect's "Final" Decision May Not Be Final
- Contract Notice Requirements
- Spearin & Design-Build Contracts
- Waiving Bid Requirements on Private Projects
- Agency's Denial of Construction Permit May Be Impermissible Taking
- Resolving Conflicts in Design Criteria
Criminal Prosecutions for Site-Safety Violations
Editor’s Note: On any project, safety must be a top priority for both contractors and owners, whether private or public. Generally, safety issues and claims related to safety problems are viewed as civil matters involving monetary exposure, OSHA investigations and sanctions, insurance coverage such as worker’s compensation, and contractual indemnity provisions. However, the potential exposures for a serious violation may extend further as illustrated by the developments reviewed in this article.
New York City prosecutors recently obtained criminal indictments against several contractor personnel arising out of two separate construction-site safety incidents. In the first, the site-safety manager of a general contractor/construction manager, a subcontractor corporation, and two of the subcontractor’s employees were indicted for manslaughter, criminally negligent homicide, and reckless endangerment in the deaths of two firefighters who died fighting a fire on a building-demolition project. The defendants are charged with causing the deaths by failing to maintain the building’s standpipe system.
In the second incident, a tower crane rigger and his company were indicted for manslaughter, criminally negligent homicide, assault, and reckless endangerment in the deaths of seven individuals who were killed when a tower crane collapsed and the top of the crane, including the cab and boom, broke away. The tower crane collapsed against the roof of an apartment building across the street, and the cab and boom catapulted over the apartment building and demolished a residential townhouse. The defendants are charged with causing the seven deaths and injuring several others by engaging in unsafe rigging practices.
These indictments are noteworthy because they were targeted against individuals. The individuals involved allegedly made project-safety choices like those that may be made on a routine basis on many construction sites. It is alleged that the defendants either knew or should have known about a dangerous condition that they (at least in part) helped to create and that their failure to remedy that condition is criminal – with significant potential consequences.
The Broken Standpipe
The South Tower of the World Trade Center collapsed onto the Deutsche Bank building on September 11, 2001, filling the building with asbestos and other hazardous substances. The contamination necessitated that the building be decontaminated and demolished. Asbestos abatement on the project began in the summer of 2006. The building’s sprinkler system had been permanently disabled by the collapse, leaving the dry standpipe system as the only means of bringing water into the building to fight fire. (A dry standpipe system is dry until it is charged with water when firefighters connect a water source.)
To speed up the demolition process, the abatement subcontractor decided to remove the hanging rods that supported the standpipe. Without this support, a large section of the standpipe broke free. The construction manager’s site-safety manager and two of the abatement subcontractor’s employees allegedly decided to remove the hanging section of pipe and to seal the open ends with tape and glue, leaving a forty-two-foot gap in the standpipe. The breach was not repaired or reported, and it is alleged that the indicted individuals either knew or should have known that the building was now defenseless against the significant threat of fire.
During the abatement work, containment barriers were constructed in the stairwells. These barriers cut off access via the stairwells to the rest of the building. In August 2007, a discarded cigarette triggered a massive fire that spread through nine stories of the building. Firefighters were blocked by the containment barriers in the stairwell. They were also unable to get any water. Two separate connections outside the building pumped water into the standpipe system, but no water reached the firefighters on the upper floors. As the fire and smoke spread, firefighters were then blocked from descending by other stairwell barricades. Two firefighters died as a result of injuries they sustained while fighting the fire. The investigation determined that the failure to get water to the firefighters – caused by the breach in the standpipe system – was a direct cause of their deaths.
Jumping the Crane
In March 2008 a tower crane collapsed while a rigging crew was “jumping” the crane. As part of this procedure, a steel collar is installed around the mast of the crane and connected to the structure with steel tie-beams for lateral support. While the collar is being connected to the tie-beams, it is temporarily suspended from the mast with polyester straps called “slings.”
The four slings being used in this case snapped, causing the 12,000-pound collar to slide down the mast from the 18th floor where it was to be installed and to dislodge the collar at the 9th floor. These two collars then continued the fall and dislodged the collar at the 3rd floor. The crane, then completely unsupported, tipped and collapsed against the roof of a neighboring apartment building. The top of the crane, including the cab and boom, broke away and destroyed a townhouse a block away. The crane operator, five members of the rigging crew, and an occupant of the townhouse died.
The state’s prosecutor alleged that condition of the slings and the manner in which they were used violated the building code, federal regulations, industry standards, and the manufacturer’s specifications. The state claimed that one of the slings had pre-existing damage that would have been obvious upon proper inspection. The state also contended that the slings were employed incorrectly and that twice as many should have been used.
The Criminal Charges
The individuals in both cases were charged with manslaughter and negligent homicide. The difference between these charges is the degree of culpability attached to the state of mind (or mens rea) of the defendants. The manslaughter counts charge the defendants with reckless homicide. A person is guilty of reckless homicide if he actually (subjectively) knows of the substantial and unjustifiable risk to human life created by his actions but consciously disregards that risk. By contrast, a person is guilty of negligent homicide if he negligently fails to perceive the substantial and unjustifiable risk to human life caused by his actions.
Every state has some version of both of the homicide charges asserted in these cases. There are also many lesser criminal offenses for causing bodily injury (but not death) that could be brought under the same theories of recklessness or negligence. Criminal laws could be construed to apply to a wide variety of site-safety violations that cause or even threaten to cause injuries. Simply put, any person whose actions create an unjustifiable risk who either (a) should have perceived that risk, but fails to do so, or (b) knows about the risk but fails to act to diminish it, could be indicted. Each situation is judged individually, and one’s status on the organizational chart (whether high or low) is no protection. Similarly (as demonstrated by these cases), when employees act or fail to act in a criminal capacity on behalf of their companies, the company itself might be criminally liable. In addition to the criminal charges, the companies and the individuals could be found liable to pay monetary restitution to a victim.
In light of these recent indictments, there is yet another reason to focus on education and enforcement concerning construction-site safety practices. The actual health and safety of both construction workers and others is obviously the most important priority on a construction project. A failure to honor and enforce that priority can be hazardous for project personnel, and as a result construction companies and their personnel may be held criminally accountable.