For this week’s Guest Post Friday here at Musings, we welcome back Seth Smiley. Seth, a native of Baton Rouge, is the owner of Smiley Law Firm. He is admitted to practice in all state and federal courts in Louisiana and California. Seth Smiley is the son of a general contractor, and acquired valuable work experience in the construction industry prior to entering law school. He earned his J.D. from Loyola, New Orleans in 2009. In his practice, Seth handles all aspects of construction cases, from initial contracting all the way to final payment once work is complete. Other areas of focus include commercial lease disputes, personal injury, business formation, and insurance property damage claims. Seth loves to fight insurance companies. Seth is currently the primary author of the Smiley Law Blog. The blogs primary focus is to provide value for current and prospective clients regarding trending legal issues in which the attorneys at Smiley Law Firm cover.
There are several factors a construction team can control on a job site. The foreman can ensure scaffolding is secure and that all employees are properly trained, and all workers can take steps to ensure a reasonably safe work site. Accidents can and will happen despite the best efforts of those involved. According to a recent poll of more than 100 published studies, the most common factors in all construction site accidents include:
- Problems involving the workers or work team, e.g., lack of training, inexperience, termination or resignation of work site lead;
- Workplace issues related to the nature of or design of construction site;
- Defective or lackluster condition of equipment or materials;
- Issues with risk management.
Some construction site accidents, however, are simply the result of “acts of God.” They involve factors beyond our control or seemingly beyond our prevention. Examples might include accidents inadvertently caused by weather. If you incurred an injury on a construction site through no one’s fault, what are your options to obtain compensation? Can the construction team take steps to prevent these accidents in the future?
Possible Recourse for Injured Workers
Thankfully, the workers’ compensation system exists for situations like these–when a worker sustains a serious injury on the job and no one seems immediately at fault. The workers’ compensation program is a no-fault system. This means that injured workers don’t have to prove that their employers were at-fault for the injuries before collecting benefits.
However, in some circumstances, collecting benefits could ultimately forfeit any rights an employee may have to sue for additional damages, such as pain and suffering. There are ways to collect for pain and suffering, but there needs to be an additional at-fault party.
An investigation might yield that even an act of God is preventable depending on the scenario. For example, a construction foreman might not be able to stop the rain, but he or she can cease work operations until safe working conditions are restored.
The law offers certain protections to construction teams who cannot meet their deadlines due to inclement weather–it’s called a force majeure clause, and it makes it harder for a client to sue or refuse payment for breach of contract.
Force majeure means “superior force” and refers to elements that may delay a project that are out of a construction team’s control. Adding one of these clauses is a simple, yet effective way to keep employees safe from the dangers of working in inclement weather.
Preventing the Impossible
Preventing accidents due to outside factors seems profoundly hard, but there are a few steps team leaders can take to prevent accidents. Consider adding these factors to your construction risk mitigation strategy:
- Create a comprehensive list of risks, rank them, and decide how you’ll deal with them.
- You might choose to avoid a risk of injury by refusing to work under certain conditions or in accident-prone areas.
- Obtain appropriately comprehensive insurance.
- And mitigate risks you can control by using proper safety equipment for heights, carcinogens, toxic materials, and excessive noise and vibration.
- Get everyone involved.
- Construction risk management doesn’t exist in a vacuum. Everyone on the team must understand and contribute to your risk management strategy.
- Communicate with frequent updates and review possible risks regularly at all levels of the operation. Timely, constructive reminders can go a long way in preventing injury, including those due to acts of God.
Despite your best efforts, some construction site injuries aren’t preventable. That’s why the workers’ compensation system exists. Apply these strategies to minimize your team’s risk of injury as much as possible.
Do what you can to reduce both the likelihood and severity of workplace injuries to put your team in the best position to execute your project successfully. For more information on subjects relating to the construction industry and construction injury, please contact the attorneys at the Smiley Law Firm for a more detailed analysis.