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Lawyer teaches safety on construction sites

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Indiana Lawyer Focus

On an occasional Saturday, you may find attorney John Daly teaching a workplace safety course in front of construction workers.

His opening line: “I can tell you how you’re probably going to die.”

The rest depends on who’s sitting in front of him listening: falling from a scaffolding or high place, electrocution, exposure to chemical hazards, or being fatally injured by a power tool or heavy machine.
 

john daly Daly

His lectures sometimes deviate, as they did most recently in late April when he spoke to a roomful of attorneys about construction law and workplace safety in new construction sites. In seminars for builders and general contractors, he teaches about safety issues weaved into project contracts that if not followed could shut their businesses down.

Daly is an Occupational Safety and Health Administration trainer authorized to teach 10-hour and 30-hour safety courses, which complements his construction law and workplace safety practice with Indianapolis law firm Cohen & Malad. His work centers on construction-site accidents involving federal and state agencies, and he’s secured high-dollar verdicts and settlements in recent years in cases representing injured ironworkers, electricians, laborers, masons, operators, and other skilled workers.

“There’s a lot of bad that goes on in construction areas,” Daly said. “Those workers on the site end up doing the most dangerous work with lousy instructions and less supervision, and I’ve seen some real bad things in those areas.”

Construction attorney Greg Dale at Baker & Daniels in Indianapolis said many hazards exist in this area and the legal issues can literally be life and death, especially in vertical construction on buildings or roadway construction sites where speeding traffic can be an issue. But he credits Indiana and especially the Indianapolis area for having a high standard for safety.

Organizations like the non-profit Metro Indianapolis Coalition for Construction Safety, Inc. are dedicated to achieving zero injury on construction and facility maintenance job sites, he said.

“Construction is a hazardous work by its nature, and I’ve found it comforting to see response of every major player who supports safety,” he said, referring to data showing Indiana has had some of its best years recently in non-fatal or serious accidents. “I don’t think these efforts are unique to Indiana, but you don’t see it everywhere across the country where companies are banding together on construction safety.”

Lawyers and law firms representing companies that do construction or renovation projects are more forcefully making sure their clients are keeping up with safety protocol and meeting federal and state standards.

In April, law firm Frost Brown Todd reported that OSHA is stepping up enforcement efforts and has cited almost twice as many employers for violations in the first quarter of 2010 than it had for all of the previous year. The national and state agencies are more stringently enforcing existing standards and expanding enforcement under the general duty clause, maximizing penalties for employers charged with safety violations, the firm reports.

For those in Indianapolis, like Daly, that means not only making sure builders and contractors and their lawyers know about the safety requirements, but that workers also know what’s expected and should be happening on sites.

“OSHA teaches companies to avoid fines … I teach to avoid the accidents,” he said. “Little things like making sure electrical cords are up to date. That’s the nickel-and-dime stuff that could end up costing millions if an accident’s caused.”

In his safety seminars, Daly said both the bosses and workers are sometimes reluctant at the start, but they usually become more receptive.

“I let them know that at times I’m the person putting their whole business at risk,” he said. “The idea is so they have an idea of what I’m doing and why I’m doing it, and how to prevent me from ever getting involved.”

Among the largest issues that construction safety lawyers deal with involve knowing the work sites and procedures taking place there, how equipment is utilized, and that work procedures are put in place, attorneys say. Contract law also is a large part of this work, as Daly often sees general contractor foremen and supervisors not reading the contracts that include safety language for those actually doing the job.

For example, contracts between owners and general contractors often include OSHA regulations and some put in their own language specifics, Daly said. He said Wal-Mart has a practice of including a higher building standard for a mandatory six-foot rule for protection when a worker’s off the ground, he said. That’s not OSHA-required, but something Wal-Mart does and requires of contractors.

“Those rules don’t put any duties on the general contractor per se, but contracts between the owners and general contractors make them liable,” he said. “The first response can be puzzlement, as they don’t realize what their obligations are through these contracts on behalf of those actually doing the jobs. … But turning a blind eye and saying ‘I wasn’t there’ isn’t a sufficient excuse.”

Throughout his career, Daly has handled dozens of construction-site accident cases ranging from scaffolding falls to crane- or equipment-malfunction injuries. Some of his more noteworthy ones include a $10.2 million jury verdict in October to the widow of a paving-company worker killed during construction work on I-465; a $2.9 million settlement last year on a steel worker’s construction-site accident, and a $925,000 verdict in August 2005 in a Hamilton County site accident where a masonry wall fell on an iron worker and caused brain injury.

“You can have some interesting legal issues come up, like a general contractor’s assumption of duty and employer liability being limited to workers’ comp,” he said. “A lot of this goes to pre-planning and job site or performance analysis. It’s not a matter of just putting hard hats on; it’s looking at a construction project and knowing the dangers and how the work can be done safely. When that’s done, accidents can be avoided.”•

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