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Construction Accidents Can Have Civil and Criminal Consequences


A former construction foreman has been charged with four felony counts in connection with a 2008 construction accident.

April 07, 2011 /24-7PressRelease/ -- In the same way that a drunk driving accident may result in criminal (DUI) charges as well as civil claims (for property damage or injuries caused in the accident), worksite accidents may also give rise to both criminal charges and civil claims for damages.

A recent case out of San Luis Obispo County is a perfect example where both civil and criminal consequences arose out of a construction accident. A construction site foreman was charged with two counts of involuntary manslaughter and two counts of violating the Labor Code in connection with a worksite accident in 2008 that resulted in the death of two men.

Criminal Charges

Two workers were removing struts from a pipe laid in a trench when an excavator working on another section of the trench reportedly struck a city water line. Both workers were trapped in the trench, and drowned.

According to the San Luis Obispo Tribune, the foreman instructed the workers to continue digging even though he had been warned that there was a water line in the excavation area. Investigation documents indicate confusion whether there were utility lines, reported the New Times. The foreman told investigators that he may have looked at a site map upside down, not seeing the water line marking, or that he may have relied on an unmarked map.

He now faces a total of six years and four months in jail if convicted of all four felony charges.

Civil Settlement and Fines

Criminal charges were not filed against the construction company; instead, the District Attorney sought and the company has agreed to pay monetary and safety reform. The construction company has agreed to pay $3 million, which will be divided among San Luis Obispo County, the California District Attorneys Association and the City of Paso Robles. The company will also adopt new safety procedures to improve employee safety at its excavation sites.

According to a company vice president, other settlements outside of court were also made with the families of the victims.

The company is appealing two $70,000 fines levied against it in early 2009 by the Division of Occupational Safety and Health (better known as Cal/OSHA) for a serious and willful violation.

Recourse When Workers are Injured

While not every construction accident results in both criminal and civil consequences, injured workers still have the right to pursue compensation for their injuries -- in some instances pursuing damages against those whose negligence caused the worksite accident.

When a worker is injured in a construction-related accident, there are various types of recourse, including:

- Workers' compensation: Injured employees can file an administrative claim with the workers' compensation insurance for money for medical bills and lost wages

- Court settlement or litigation: Injured workers can file a civil action to pursue money damages

- Civil fines and penalties: State, federal or local agencies and entities may impose fines and penalties on the employer for safety or other violations.

- Criminal charges: The employer, or individual supervisors or co-employees, may face criminal charges when their role in the accident is so egregious as to rise to the level of criminal responsibility.

Not all recourse against the employer directly affects injured workers or their families. That is, civil fines or criminal charges are generally used to punish the employer, or as a basis for educating the employer and correcting the dangerous conditions that gave rise to the accident.

On the other hand, workers' compensation benefits are paid directly to the injured worker. Similarly, if a worker brings a courtroom action against the employer or supervisor, to the extent a jury award or court settlement is reached, that money would be paid directly to the injured worker. Verdicts and settlement money is used to compensate for medical expenses or loss of wages.

Jury awards can also be used to punish employers if the employer acted willfully, committed gross negligence or acted in disregard of humanity. In these instances, the court may impose punitive damages, which are awarded to the victim even though the purpose is to punish the employer.

Any workers who have suffered an illness or injury due to a workplace accident should contact a personal injury attorney to determine whether they have a claim for damages and to protect their right to claim those damages.

Article provided by Shapiro, Galving, Shapiro & Moran, PC

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Distracted Driving and OSHA Fines


distracted driving, cell phone liabilityWe all know that distracted driving has become an epidemic in the U.S.   In 2009, the DOT reports, more than 5,400 people died in crashes linked to distraction.  And yet, we continue to drive distracted.

As an employer, it is your obligation to provide a safe and healthy workplace.  If that workplace happens to be a company vehicle, than make sure you have policies and procedures in place regarding the use of cell phones and texting while your employees are operating company vehicles and machinery. 

OSHA has joined the ranks of those trying to combat this epidemic.  If you are an employer who requires the use of cell phones or texting while driving,  or who organizes workloads in such a way that texting is a necessity you could be setting yourself up for an OSHA citation and fine!  If OSHA receives a complaint regarding the necessity of employees talking or texting while driving, they will investigate and where necessary assess citations and penalties!

So, save a life (or 2 or 3) and save a penalty – establish and enforce your policy today!

Here's another blog post on the subject, and one more

Your Construction Company could be the next New York Giants


If you made it back home from holiday shopping yesterday a little early yesterday, you might have been lucky enough to catch the 4th quarter of the New York Giants/Philadelphia Eagles game yesterday.  If you missed it, the Giants went into the final half of the 4th quarter with a 31-10 lead.  99/100 times, this is enough of a lead to easily win the game, especially at home when the opposing team is cold, demoralized, and wishing to get off the field.  However, the Eagles rallied.  Scored 3 consecutive touchdowns, and as the clock wore down to the final seconds of the game, the Giants brought out their punting unit in hopes of icing the Eagles, and regrouping in overtime.  After a lousy snap to punter Matt Dodge, he kicked a line drive to the worst possible receiver, (from the Giants standpoint) Desean Jackson.  A line drive has the least amount of hangtime, which prevents the defense from getting to the receiver in a timely fashion, and in this case, allowed Jackson to run for 65 yards and a touchdown to win the game as time expired.

At the start of the 4th quarter, no one expected the Giants to lose, but a series of missteps cost them the game, as well as the lead in the NFC East as the playoffs are only 2 games away.

What does this have to do construction insurance?

Many contractors we speak to don't feel that they have any sort of safety or experience mod problems, and because of their good record on both, they let their guard down.  I liken this to the attitude that the Giants had going into the end of the 4th quarter.  They had dictated the game, and had done the majority of scoring with very few errors until the end of the 4th quarter and had no reason to believe that they wouldn't win.  But just a few errors cost them big time.

What could a few errors in judgment or ill conceived plans do to your safety record?  What would happen if your exemplary experience mod factor shot up over 1.00 and you couldn't bid jobs for the state or certain general contractors?  Just because you played well for the first 3/4s doesn't give you an automatic pass for the rest of the game.  Even the best plans, the biggest leads, the lowest experience mods, and a great defense (safety record) are fallible.  As you start planning how your construction company is going to improve their safety program for 2011, keep in mind that safety is something that matters for all four quarters of the game and all four quarters of the year.

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