Our Construction Practice Group at Arent Fox frequently defends owners, landlords, design professionals, and contractors in claims for personal injury claims brought by construction workers. Absent a “grave injury” as defined under Section 11 of the New York Workers’ Compensation Law, these workers cannot sue their employer and will instead seek recovery by claiming against all of the other parties who were involved in the project (though the employer – typically a contractor – will invariably be brought into the action by means of a third-party complaint).
To date, the potential for increased risks of bodily injury to the construction workers who prosecute green building projects has been generally unremarked upon by commentators, but a recent article that was forwarded to me by my colleague (and frequent GRELJ commenter) Brian Anderson, as well as some recent client work related to the subject, has me thinking about the intersection of green construction practices with these types of actions.
In addition to the additional learning curve which certain types of green building installations may present to workers, some specific green building-related risks that project teams should consider and address in their site safety plans are as follows:
- Demands – driven by owners and third-party rating systems – for designs that provide increased interior natural daylight and translate into additional skylight penetrations or other openings may increase the risk that workers will fall on the job. (For example, consider IEQ Credit 8.1: Daylight and Views: Daylight under LEED Version 3.0 for New Construction). This risk is particularly critical here in New York, where our Labor Law Section 240(1) makes liability for any gravity-related fall absolute. (For a number of reasons, the Scaffold Law, as it is called, is one of the most frequently litigated topics in all of New York construction law.) The duty that Labor Law 240(1) imposes on owners and contractors “is non-delegable . . . and an owner or contractor who breaches that duty may be held liable in damages regardless of whether it has actually exercised supervision or control over the work.” (i.e., even if the contractor or owner is only 1 percent at fault for the injury, and the worker is 99 percent at fault, the contractor or owner will be completely liable for all of the worker’s injuries).
- Construction management plans that call for reduced temporary lighting may create darker work spaces, decrease workers’ visibility, and increase the risk of construction-related hazards causing site safety issues.
- Reductions in the amount of temporary heating and cooling which may be provided at the project site may also heighten the risk of injuries to workers (by creating ice conditions in the winter and overheating – to equipment and workers – during the summer months).
- Air quality management plans may require certain building materials and products to be unpacked and unloaded off-site, increasing the risk of injury to workers who may be responsible for bringing those same materials to the project site.
It is also worth nothing that, in terms of site safety generally in New York, Labor Law Section 241(6) provides the same type of absolute liability against owners and contractors when a worker’s injuries are caused by a violation of certain statutory site safety regulations, even if neither owner nor contractor exercised supervision or control over the project site and was therefore not negligent in causing the condition that led to the alleged injuries.
Although the foregoing risks are of the class that any project team must manage in connection with a construction project, green building practices do have the potential to add an additional layer of risk to site safety practices. In New York, where courts will seek to fold these types of claims within the ambit of the applicable statute and preserve a plaintiff’s ability to recover – particularly under Labor Law 240(1) – it is critical that project teams directly confront green building-related risks that may impact site safety. Accordingly, in their construction agreements, owners should consider the specific risks that may be created by their green goals and require contractors and construction managers to incorporate a green building-related site safety plan in order to reduce the risks of injury to workers and the corresponding risk of claims. Doing so is of particular import given the increase in regulatory activity that continues to take place at the state and local levels.
In addition to the brief list above, are there any additional construction-related green building risks that you would identify? Have any of you seen claims arising out of these types of situations in your practice?
Once again, my thanks to Brian Anderson of Whyte Hirschboeck Dudek S.C. for forwarding along an article authored by Frank Keres, President of Construction Risk Associates, on which these remarks are based (and which I was unable to find available online).