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Precedents in most states establish that OSHA standards apply to third parties at construction sites.

Personal injury case juries are known for their generosity toward injured individuals, but a current case where I'm an expert witness for the plaintiff shows that juries can be unpredictable.

The case involves a hotel that was getting a heating and cooling system upgrade in Las Vegas. Because the case is under appeal, I can't reveal the name of the case or the parties. I can tell you enough about it to show you how far off course this Nevada state court jury strayed in ruling against the injured person suing a general contractor for damages.

During the work in 2004, the contractor placed temporary refrigeration pipes on the ground out in back of the hotel. The contractor also built a walking surface, a ramp and handrails over the pipes.

One day the owner of the restaurant in the hotel went out back to get a sack of salt from his car. Holding the sack on his shoulder, he made his way back to the restaurant but lost his balance on the ramp. The restaurant owner grabbed a handrail but it flexed, then broke and he fell. Regaining his feet but feeling wobbly, the owner then grabbed another handrail and it flexed, broke and he fell again. Since then he's struggled with numerous injuries, operations and severe migraine headaches.

The issue is whether employers must comply with Occupational Safety and Health Administration standards only for their employees, or do standards of care apply to those who find themselves in the same workspace? My experience shows that most states agree that OSHA standards do apply.

For example, a Nebraska state court ruled in Orduna v. Total Const. Services Inc. in 2006 that while OSHA regulations are written to protect employees, “an unsafe practice for an employee applies equally well to a person who legitimately finds himself in the same space as an employee.” OSHA standards, the court added, are relevant to injured non-employees.

In New Mexico in 2008, OSHA cited three employers with staff present when the front section of a backhoe broke loose at a Dept. of Energy project at White Sands. The backhoe section crushed a safety inspector standing alongside. OSHA cited employers of the three staff members for failing to provide a competent person who could recognize and fix the hazard.

Lack of Association

Attorneys for the employers who witnessed the accident argued that the employers weren't liable because their staff members were not associated with the employer of the backhoe operator. But OSHA showed that a hazard had been created and that the area of the hazard was accessible not only to the employees of the cited employer but to workers of other employers engaged in the common undertaking. The U.S. secretary of labor wrote a brief supporting OSHA citations.

There are even instances where state courts have ruled in favor of injured parties who were not part of the construction project. For example, an Indiana homeowner who rode his bicycle through an open excavation on a golf course pathway was able to recover damages from an irrigation contractor. The excavation had been protected only with yellow tape, and the bike rider's injuries were severe.

Back in Nevada, I made a report for the restaurant owner and cited OSHA's 200-pound requirement for handrail structural integrity.

The contractor's attorney argued that OSHA standards apply only to employees of the contractor, and that they have no jurisdiction to the restaurant owner who just happened to be in the same area. Interestingly, he also argued that the contractor didn't need to construct a handrail because the plywood walking/working surface was less than two feet from the surface of the asphalt behind the restaurant.

Here is where I see the miscarriage of justice. During the trial, I testified that it didn't matter what the code was. If a handrail was built, it must be strong enough to support someone leaning on it. I'd built temporary handrails all over the country, but I'd never seen one as bad as this one. The jury had other ideas. It decided that since there was no code violation, the contractor was not accountable.

All of which reminds me of what a judge once said to a young attorney arguing vehemently for justice. “Young man,” the judge said, “this has nothing to do with justice; this court is about the law.”