Don't Leave Safety Equipment in Truck

The employer’s supervisor testified that he provided safety equipment, was familiar with OSHA’s requirements, and made the decision not to use safety netting—because, in his opinion, fall protection was not needed on a flat roof.

By THOMAS H. WELBY, P.E., ESQ.

In an action against the City of New York, a roofer, injured in an 18-foot fall from a roof on which he was laying rubber at the Rikers Island Correctional Facility, recently won a summary judgment on the issue of liability against the city.

The case, Hocza v. City of New York, decided in the federal district court in Manhattan, again underscores the necessity of both providing and ensuring the proper use of fall safety protection on construction sites.

Construction safety rules one and two are probably these: never let workers go up on a roof (or indeed on any elevated surface, on which he is at risk of a fall of six feet or greater) and never let workers go down into an un-shored excavation of five feet or greater in depth. If your company has the costliest, shiniest written safety manual, and even if you’re doing many things right in terms of worker safety, if you let employees go up on the roof without fall protection, or go down (even briefly) into an un-shored trench, you’re taking unnecessary risks.

Fall protection is particularly essential in New York, not only because falls are the number one cause of construction injuries, but because New York’s “scaffold law,” Labor Law 240, virtually (if, technically, not quite) deprives both the employer and the premises owner of the “comparative negligence” defense. Under “comparative negligence,” in most contexts an injured plaintiff, whose own fault contributed to the occurrence that brought about his injuries, will have his damages award cut accordingly. If, however, the plaintiff has been injured in a fall at a construction workplace, unless it can be proved that the employee’s own negligence was 100 percent to blame for his injuries, the defendant is going to lose.

In the Hocza case, on a January morning the 31-year-old plaintiff, and three co-workers, carried equipment and supplies up onto the roof of a “visit house” at the Rikers Island facility. Mr. Hocza and his co-workers were instructed by their boss to install a new layer of rubber on the roof. The men commenced working and, after about an hour, their supervisor left the site, and did not return.

During the 90 minutes or so that Mr. Hocza worked putting down, unwinding, cutting and rolling the roofing material, the winter wind caused difficulties with unrolling the material, and the flame on the torches was repeatedly blown out. Mr. Hocza later recalled standing up feeling the wind’s force. His next memory was that of waking up in the hospital after his fall. A co-worker had seen Mr. Hocza rolling material just a few feet from the edge of the roof. Looking again a moment later, this co-worker saw that Mr. Hocza had vanished from view. Walking over to the edge of the roof, he saw Mr. Hocza unconscious on the ground, 18 feet below.

The employer’s supervisor testified that he provided safety equipment, was familiar with OSHA’s requirements, and made the decision not to use safety netting—because, in his opinion, fall protection was not needed on a flat roof like the one on which Mr. Hocza was working.

Mr. Hocza’s testimony was that, during his employment, he worked on both pitched roofs and flat roofs. Whenever he worked on a pitched roof, safety belts were provided, but the employer usually did not provide any form of fall protection equipment for work on flat roofs.

Mr. Hocza’s supervisor admitted that, on the day in question, he did not direct the workers to take the safety netting from the truck up to the roof. The netting was not deployed, and the supervisor “could not recall” if the workers had taken it from the van onto the roof.

The court wasted little time in awarding summary judgment in favor of the plaintiff on the issue of the city’s liability. Excepting owners of one and two-family dwellings who do not direct or control the work, contractors and owners in the “erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure” must furnish devices “constructed, placed and operated as to give proper protection” to persons carrying out the work.

The judge noted that New York’s Court of Appeals has held that the statute imposes absolute liability in damages for injuries sustained by a worker, upon an owner or contractor who has (1) failed to provide any safety devices for workers at a building worksite, where (2) the absence of such devices is the proximate cause of injury to a worker.

In Mr. Hocza’s case, the court sensibly found, no protective devices or safety equipment of any kind were provided or made available to Mr. Hocza, and neither his employer, the city, the Department of Corrections nor anyone else directed him to use any devices that would have provided him with fall protection.

Accordingly, and as laying the roofing materials readily qualified as “repair” to the building (bringing it within the reach of the statute), the court found that there was no uncertain issue of fact sufficient to warrant a trial on the issue of liability. Summary judgment for the plaintiff was therefore granted.

The court rejected an expert’s report, proffered by the city, which sought to show that there was an issue of fact as to whether the wind was sufficient to have caused the plaintiff’s fall. Moreover, the city argued, Mr. Hocza’s fall was unobserved, and Mr. Hocza himself could not remember precisely what caused him to fall.

The city expert’s report and the foregoing argument were brushed aside by the court. Mr. Hocza, the court stated, had been placing roofing material within a few feet of the roof’s edge immediately before he fell. No fall protection had been provided. The absence of safety equipment had to have been (the court reasoned) at least a partial cause of the accident. The city’s efforts to cast doubt on the plaintiff’s theory as to why he fell was insufficient to create a fact issue substantial enough to necessitate a trial.

Finally, the court rejected the notion that the mere presence of safety devices onsite (in the truck) somehow satisfied the statutory duty. “Proper protection” is more than having safety equipment in the truck. Such equipment has to be “appropriately placed or erected” so as to safeguard the employee.

Alert readers here will have noted that in the Hocza case, summary judgment was granted against the city, the premises owner, and not against the employer. While true, that litigation involved a third party action (by the city against the employer) in which discovery was less faradvanced than in the main action. Rest assured, there is little doubt that the contractor, or its insurance carrier, will wind up contributing substantial monies to a verdict or a settlement, to compensate Mr. Hocza for his injuries. Plainly, the employer was responsible to both make available and to deploy the protective equipment. Having failed to do so, it would appear certain that ultimately it will be held at least partly liable, under the doctrine of contribution.

The view expressed by the supervisor in Hocza, that working on a flat roof (18 feet above ground) in any season, let alone the dead of winter, does not require fall protection is completely unfounded. And, trying to defend a Labor Law 240 case, based on unused safety equipment being left in the truck, is futile, not to say ridiculous.

If your trade and the jobs you do involve employees working at elevations of six feet or more, or working in or around excavations, you need to be earning “A’s” in both fall protection and trenching safety. If you aren’t, you’re no better than a “D+” employer, in terms of safety, even if you’re making straight “A’s” in all but these two subjects. Employers and liability carriers, of course, gripe endlessly about the “Scaffold Law,” but there is little prospect of its repeal. Moreover, while certainly there are close cases, an 18-foot fall from a roof, where no safety equipment was in use, is not such a case.

In short, know what the law requires of you in terms of fall protection, provide the necessary training and equipment, insist that employees and, especially, your supervisors take it seriously, and discipline employees who don’t. Protect the lives of your workers, and the future and financial health of your company.

About the author: Mr. Welby is a licensed professional engineer, as well as an attorney and managing partner of Welby, Brady & Greenblatt, LLP, a construction law firm with its main office in White Plains. Articles in this series are for general guidance only, and should not be relied upon as providing all information necessary for compliance with OSHA and other legal requirements.