CONSTRUCTION SITE INJURIES AND DEATHS
By: J. Norman Stark, Attorney & Registered Architect*
Construction is a hazardous occupation. The fatality rate for construction workers has been estimated at more than three times the rate for all other industry sectors. Predictably, for the seven (7) million men and women currently employed in the construction industry, simply going to work each day can be a risky venture.
Construction workers face serious risks of injuries or death when working in trenches or near potentially unstable ground. In one recent year, six workers died as a direct result of construction cave-ins. The National Institute for Occupational Safety and Health (NIOSH) statistics reports an average of 60 workers die in unprotected cave-ins each year.
BUT, these deaths are entirely preventable, and it is appalling that workers continue to suffer serious injuries or death in “buried alive” cave-ins when, almost without exception, these deaths can be prevented with available, existing safety precautions. Even more importantly, these precautions are mandatory under the laws applicable in almost all states and jurisdictions.
Cave-ins are not the only threat to the safety of construction workers. Other hazards include: working at heights without proper safety harnesses or protection, working with heavy machinery, manually handling heavy or bulky materials, and working near or with sources of electricity, such as overhead power lines, and from failures to lock-out/tag-out live electrical circuits during maintenance or repairs, scaffolding, cranes, rigging, and many others in any daily schedule.
Several factors contribute to trench cave-ins. For example, soil stability is related to soil types and are affected by changes in weather. In the spring, unshored trench walls, heavy from rain, may become unstable. Also, when damp or even sandy soil, or shale, is exposed to air during excavation, it can dry out and lose the cohesive quality to stand on its own, increasing the risk that it will slide, or collapse. Still other factors include proximity to traveled highways, large vibrating machinery, loosely backfilled areas or existing, aging structures and foundations.
OSHA - the Occupational Safety and Health Administration, requires that one or more of the following precautions must be taken when working with open trenches:
Utilize a shield or trench box system designed to protect workers in excavations.
Shore sides of excavations with timbers or other materials to ensure that the earth does not collapse on workers who must enter them. ( Provide ladders for easy escape.)
· Slope the sides of excavations to reduce the "overburden" (weight and pressure exerted by large amounts of soil on the sides), and enhance the coefficient of friction to prevent slides.
Secure sides by equivalent means, such as engineer-designed sheeting or bracing.
((more))
Other safety requisites are readily available through OSHA and each state’s workers’ compensation administration, in addition to those of industrial labor organizations.
Construction fatalities and injuries cannot be accepted as an inevitable ritual occurrence of the construction process. Workers must be adequately protected from life-threatening hazards. Injuries and deaths can be prevented only if and when both employers and employees are aware of the hazards they face and implement proper precautions and enforce mandated safety measures.
-30 -
* AUTHOR: J. NORMAN STARK is an Attorney-at-Law, a Registered Architect, (AIA, NCARB) Registered Landscape Architect, Interior Designer, Planner and Senior Appraiser (ASA), who practices as a Mediator, Arbitrator, and Litigator. He is admitted to practice law before the Bar of Ohio, the US District Courts, Ohio and Illinois (Central Dist.), the US Court of Appeals, and the United States Supreme Court. He has professional experience in Business, Construction, Public Works, Litigation, Real Estate and Construction-Legal Project and Crisis Management. He also serves as an Expert Witness and provides litigation support. His offices are in Cleveland, Ohio, and Sarasota, FL .
Tuesday, January 13, 2009
Sunday, January 11, 2009
CONSTRUCTION LAW - CONTROVERSIES; BACKCHARGES, EXTRAS
CONSTRUCTION LAWLETTER
For Industry Professionals, Officers, Managers, Trades and Suppliers
J. NORMAN STARK, ATTORNEY and REGISTERED ARCHITECT
JURIS DOCTOR, B. ARCHITECTURE, B.F.A.
The Stark Building • 1310 East 49th Street • Cleveland, Ohio 44114-3803
Tel.: (216) 426-8400 • Fax: (216) 426-8411 • E-Mail: www.Normstark@aol.com
In Florida • 6500 Midnight Pass Rd. #105 • Sarasota, FL 34242 • (941) 349-2061•
Homepage: www.Jnormanstark.com
Vol. 1, Issue 13 * SPECIAL EDITION * Reissue January, 2009
CONSTRUCTION CONTROVERSIES -BACKCHARGES AND EXTRAS
With greater frequency, claims arising between General Contractors (“GC’s”) and Subcontractors (“Subs”), are based on work actually required of subcontractors, but performed by the GC, and for which the Sub is held liable. For example, the cleanup and removal of packaging materials, crates and pallets, etc., in or upon which certain materials and finished fixtures are delivered to the site, are generally the responsibility of the generating trade, subtrade, or supplier, depending upon the construction contract and agreement of the parties. Where the cleanup is not done, the prime contractor will perform such work or services, and then backcharge the sub by deducting the amount of the backcharge from the sub’s progress payments. Serious disagreements may result, especially where there is inadequate documentation to support the contentions of each party as to such responsibility.
Still other disagreements may arise regarding other areas of subcontractor responsibility or benefit, including: acceleration, delay, use of “float time”, completion of work, “timely performance”, final touch-up of punch listed items, and beneficial occupancy of the tenant or owner.
Project disputes can be avoided by carefully defining all of the terms of agreement, particularly where serious questions of money are involved!
“Extras” are often (humorously) defined as: “…any work, materials, or methods, whether necessary, desired, required, requested, performed or supplied, and not even included!” However, where essential items have been discussed and agreed to by the parties, oral agreements, although (often) sincerely intended, may neither be accurately nor fully recalled later, particularly where serious questions of money are involved. Good business practice recommends a writing, signed by all parties.
Where items are invoiced as “Additional Work” or “Verbal Order”, or “Field Necessity”, the only truly important question is, who pays for it? Clearly, the person or entity authorizing or requiring extra work must pay for it.
Successful construction business practice in the tripartite owner-contractor-subcontractor relation-ship require three important operating principles: (1) All contracts, subcontracts and supply agreements must be negotiated carefully and drafted skillfully to confirm all of the terms of agreement between the parties. (2) The GC’s role as a project coordinator must be that of a skilled, experienced, diplomatic, master-builder-facilitator, not an iron-fisted, militaristic dictator. (3) All of the parties to the construction contract and process must be willing to meet and to resolve all disputes immediately, fairly, and without defamation of any party, or delaying or jeopardizing timely completion of the project.
* * *
AUTHOR: J. NORMAN STARK is an Attorney-at-Law, a Registered Architect, (AIA, NCARB) Registered Landscape Architect, Interior Designer, Planner and Senior Appraiser (ASA), who practices as a Mediator, Arbitrator, and Litigator. He is admitted to practice law before the Bar of Ohio, the US District Courts, Ohio and Illinois (Central Dist.), the US Court of Appeals, and the United States Supreme Court. He has experience in Business, Construction, Public Works, Litigation, Real Estate and Construction-Legal Project and Crisis Management. He also serves as an Expert Witness and provides litigation support. His office is in Cleveland, Ohio.
For Industry Professionals, Officers, Managers, Trades and Suppliers
J. NORMAN STARK, ATTORNEY and REGISTERED ARCHITECT
JURIS DOCTOR, B. ARCHITECTURE, B.F.A.
The Stark Building • 1310 East 49th Street • Cleveland, Ohio 44114-3803
Tel.: (216) 426-8400 • Fax: (216) 426-8411 • E-Mail: www.Normstark@aol.com
In Florida • 6500 Midnight Pass Rd. #105 • Sarasota, FL 34242 • (941) 349-2061•
Homepage: www.Jnormanstark.com
Vol. 1, Issue 13 * SPECIAL EDITION * Reissue January, 2009
CONSTRUCTION CONTROVERSIES -BACKCHARGES AND EXTRAS
With greater frequency, claims arising between General Contractors (“GC’s”) and Subcontractors (“Subs”), are based on work actually required of subcontractors, but performed by the GC, and for which the Sub is held liable. For example, the cleanup and removal of packaging materials, crates and pallets, etc., in or upon which certain materials and finished fixtures are delivered to the site, are generally the responsibility of the generating trade, subtrade, or supplier, depending upon the construction contract and agreement of the parties. Where the cleanup is not done, the prime contractor will perform such work or services, and then backcharge the sub by deducting the amount of the backcharge from the sub’s progress payments. Serious disagreements may result, especially where there is inadequate documentation to support the contentions of each party as to such responsibility.
Still other disagreements may arise regarding other areas of subcontractor responsibility or benefit, including: acceleration, delay, use of “float time”, completion of work, “timely performance”, final touch-up of punch listed items, and beneficial occupancy of the tenant or owner.
Project disputes can be avoided by carefully defining all of the terms of agreement, particularly where serious questions of money are involved!
“Extras” are often (humorously) defined as: “…any work, materials, or methods, whether necessary, desired, required, requested, performed or supplied, and not even included!” However, where essential items have been discussed and agreed to by the parties, oral agreements, although (often) sincerely intended, may neither be accurately nor fully recalled later, particularly where serious questions of money are involved. Good business practice recommends a writing, signed by all parties.
Where items are invoiced as “Additional Work” or “Verbal Order”, or “Field Necessity”, the only truly important question is, who pays for it? Clearly, the person or entity authorizing or requiring extra work must pay for it.
Successful construction business practice in the tripartite owner-contractor-subcontractor relation-ship require three important operating principles: (1) All contracts, subcontracts and supply agreements must be negotiated carefully and drafted skillfully to confirm all of the terms of agreement between the parties. (2) The GC’s role as a project coordinator must be that of a skilled, experienced, diplomatic, master-builder-facilitator, not an iron-fisted, militaristic dictator. (3) All of the parties to the construction contract and process must be willing to meet and to resolve all disputes immediately, fairly, and without defamation of any party, or delaying or jeopardizing timely completion of the project.
* * *
AUTHOR: J. NORMAN STARK is an Attorney-at-Law, a Registered Architect, (AIA, NCARB) Registered Landscape Architect, Interior Designer, Planner and Senior Appraiser (ASA), who practices as a Mediator, Arbitrator, and Litigator. He is admitted to practice law before the Bar of Ohio, the US District Courts, Ohio and Illinois (Central Dist.), the US Court of Appeals, and the United States Supreme Court. He has experience in Business, Construction, Public Works, Litigation, Real Estate and Construction-Legal Project and Crisis Management. He also serves as an Expert Witness and provides litigation support. His office is in Cleveland, Ohio.
CONSTRUCTION DEFECTS AND BUILDING PRODUCTS
CONSTRUCTION LAWLETTER
For Industry Professionals, Managers, Trades & Suppliers
J. NORMAN STARK, ATTORNEY and REGISTERED ARCHITECT
JURIS DOCTOR, B. ARCHITECTURE, B.F.A.
The Stark Building · 1310 East 49th Street · Cleveland, Ohio 44114-3803
Tel.: (216) 426-8400 · Fax: (216) 426-8411 · E-Mail: www.Normstark@aol.com
In Florida · 6500 Midnight Pass Rd. #105 · Sarasota, FL 34242 · (941) 349-2061·
Homepage: www.Jnormanstark.com
Vol. 2009-1 January, 2009
CONSTRUCTION DEFECTS AND BUILDING PRODUCTS
Construction defects claims arise in all venues of the construction industry, and may be attributable, whether directly or indirectly, to building products defects and failures.
Defect claims involving construction typically involve a design mistake or deficiency in the planning, design, construction documents, contract documents, administration (“supervision”), inspection, or implementation of any improvement to real property.
Construction defect claims may be attributable to any one or more related aspects of the complex building process, namely: (1) interpretation of the construction documents, (2) failure of the structural system or any of its components, i.e. floor and ceiling failure, (3) water intrusion i.e. water leaks, (4) sound, vibration, or mechanical noise, (5) soil subsidence, (6) wood decay, mold, and (7) to product failure, to name only a few potential claims. An experienced construction defect lawyer and forensic engineer should be retained to assist in evaluating and defending or addressing these claims, as part of a cohesive, professional, litigation support team.
Initially, construction defect liability may be based on the decisions of the architect-engineer or builder and/or developer, since they are (each) in a primary position to decide budgets, applicable building codes, construction strategy, procedures, limitations, and implementation. The A/E must stress the need for testing and analysis of soil and sub-surfaces, and to design based upon soil stability and support, in order to prepare adequately before placing foundations. This is only a limited example of the several important preliminary evaluations required. Next, where soil and subsurface conditions are poor, or unacceptable, the responsibility of the A/E designer and builder- developer shift to a duty to choose the best construction strategy to preclude building failure and construction defects, injuries or deaths.
At the first sign of a construction defect or failure, fully document all factual issues with photographs, videotape, written memoranda and full communication of all observations and reports to the highest authority in charge of each project. Construction defects in any building project may be attributable to a complex variety of causes. Determining whether a cause is the proximate cause, and the actual construction defect is a critical challenge. However, once determined that a construction defect exists, it is essential to develop a strategy to determine who is responsible for the defect, and who shall bear the cost to cure or repair?
The causes of construction defects and construction deficiencies (poor quality or substandard workmanship) and subsurface/geotechnical problems are extremely difficult to detect and often even more difficult to repair or cure. The priority is to restore the building to full occupancy in a safe and economically productive condition. This can be an arduous task unless Counsel is familiar with all aspects of the construction process, from land development to occupancy, and all that goes with it.
The entire chain of participants in any construction project, from Developers to Owners, Investors, Architects, Engineers, Contractors, Subcontractors, and even to Suppliers and to Manufacturers of Building Products, without the technical training, experience and knowledge of the construction-legal process are at a distinct disadvantage, and should seek experienced Construction Counsel as an advocate, to provide informed guidance, representation, and risk reduction * * *.
.
"Judge a man by his questions
rather than by his answers."
Voltaire
AUTHOR: J. NORMAN STARK is an Attorney-at-Law, a Registered Architect, (AIA, NCARB) Registered Landscape Architect, Interior Designer, Planner and Senior Appraiser (ASA), who practices as a Mediator, Arbitrator, and Litigator. He is admitted to practice law before the Bar of Ohio, the US District Courts, Ohio and Illinois (Central Dist.), the US Court of Appeals, and the United States Supreme Court. He has experience in Business, Construction, Public Works, Litigation, Real Estate and Construction-Legal Project and Crisis Management. He also serves as an Expert Witness and provides litigation support. His office is in Cleveland, Ohio.
For Industry Professionals, Managers, Trades & Suppliers
J. NORMAN STARK, ATTORNEY and REGISTERED ARCHITECT
JURIS DOCTOR, B. ARCHITECTURE, B.F.A.
The Stark Building · 1310 East 49th Street · Cleveland, Ohio 44114-3803
Tel.: (216) 426-8400 · Fax: (216) 426-8411 · E-Mail: www.Normstark@aol.com
In Florida · 6500 Midnight Pass Rd. #105 · Sarasota, FL 34242 · (941) 349-2061·
Homepage: www.Jnormanstark.com
Vol. 2009-1 January, 2009
CONSTRUCTION DEFECTS AND BUILDING PRODUCTS
Construction defects claims arise in all venues of the construction industry, and may be attributable, whether directly or indirectly, to building products defects and failures.
Defect claims involving construction typically involve a design mistake or deficiency in the planning, design, construction documents, contract documents, administration (“supervision”), inspection, or implementation of any improvement to real property.
Construction defect claims may be attributable to any one or more related aspects of the complex building process, namely: (1) interpretation of the construction documents, (2) failure of the structural system or any of its components, i.e. floor and ceiling failure, (3) water intrusion i.e. water leaks, (4) sound, vibration, or mechanical noise, (5) soil subsidence, (6) wood decay, mold, and (7) to product failure, to name only a few potential claims. An experienced construction defect lawyer and forensic engineer should be retained to assist in evaluating and defending or addressing these claims, as part of a cohesive, professional, litigation support team.
Initially, construction defect liability may be based on the decisions of the architect-engineer or builder and/or developer, since they are (each) in a primary position to decide budgets, applicable building codes, construction strategy, procedures, limitations, and implementation. The A/E must stress the need for testing and analysis of soil and sub-surfaces, and to design based upon soil stability and support, in order to prepare adequately before placing foundations. This is only a limited example of the several important preliminary evaluations required. Next, where soil and subsurface conditions are poor, or unacceptable, the responsibility of the A/E designer and builder- developer shift to a duty to choose the best construction strategy to preclude building failure and construction defects, injuries or deaths.
At the first sign of a construction defect or failure, fully document all factual issues with photographs, videotape, written memoranda and full communication of all observations and reports to the highest authority in charge of each project. Construction defects in any building project may be attributable to a complex variety of causes. Determining whether a cause is the proximate cause, and the actual construction defect is a critical challenge. However, once determined that a construction defect exists, it is essential to develop a strategy to determine who is responsible for the defect, and who shall bear the cost to cure or repair?
The causes of construction defects and construction deficiencies (poor quality or substandard workmanship) and subsurface/geotechnical problems are extremely difficult to detect and often even more difficult to repair or cure. The priority is to restore the building to full occupancy in a safe and economically productive condition. This can be an arduous task unless Counsel is familiar with all aspects of the construction process, from land development to occupancy, and all that goes with it.
The entire chain of participants in any construction project, from Developers to Owners, Investors, Architects, Engineers, Contractors, Subcontractors, and even to Suppliers and to Manufacturers of Building Products, without the technical training, experience and knowledge of the construction-legal process are at a distinct disadvantage, and should seek experienced Construction Counsel as an advocate, to provide informed guidance, representation, and risk reduction * * *.
.
"Judge a man by his questions
rather than by his answers."
Voltaire
AUTHOR: J. NORMAN STARK is an Attorney-at-Law, a Registered Architect, (AIA, NCARB) Registered Landscape Architect, Interior Designer, Planner and Senior Appraiser (ASA), who practices as a Mediator, Arbitrator, and Litigator. He is admitted to practice law before the Bar of Ohio, the US District Courts, Ohio and Illinois (Central Dist.), the US Court of Appeals, and the United States Supreme Court. He has experience in Business, Construction, Public Works, Litigation, Real Estate and Construction-Legal Project and Crisis Management. He also serves as an Expert Witness and provides litigation support. His office is in Cleveland, Ohio.
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