Construction Injuries
&
Expert Witnesses
Martin L. Glink
Law Office of Martin L. Glink
1655 N. Arlington Heights Road
Suite 100 East
Arlington Heights, IL 60004
847.394.4900
847.394.1521 fax
glinklaw@aol.com
Introduction
Protecting the rights and the safety of construction workers is truly challenging and
rewarding work. One usually works against top lawyers, whether with Plaintiff or Defendant.
Construction managers, and superintendents are usually tough, but heatable, witnesses.
Handling such cases is expensive since discovery is intensive and fact-driven.
It is hugely different from straight slip and fall cases. One must explore all avenues of
information. Contacting co-workers, witnesses, local law enforcement, building directors and
departments, OSHA, local fire departments, and, even Defendants or Defendant's representatives
(pre-suit), can be time consuming but lucrative work. Working with your construction safety
expert is exciting and a learning experience.
Construction litigation is the perfect mix of office time, field work, investigation, pretrial
and mediation, and trial time. Of course, expert witness work is crucial. It is another level of
challenge, in terms of time and resources.
Field work offers the chance to "get your hands dirty." Lawyers handling these cases
know that even with the help of Google Earth or Google Maps, there is no substitute for a visit to
the scene as early as possible after an event. This can be critical. Its importance cannot be
overemphasized.
The lawyer has to educate himselflherself about the scope of the work, the layout of the
site; photographs should be taken of the scene, the signs, warnings, barricades, or the lack of
them; sales and site advertising - trailers and offices on site, often with signage of contractor by
name and title. These can be important pieces of the puzzle. Do not wear your best dress shoes,
(I have seen younger lawyers arrive this way for a scene/site inspection).
Visiting local building departments can be very helpful. One can discern what codes
were applicable on the date of loss. Inspection of job documents can prove to be a treasure trove
of information. Who took out what permits, who paid for the permits, what title did they apply
1
to themselves when applying for that building permit, who facilitated inspections, took progress
photos, and invariably pledged to follow all codes, ordinances and construction standards - and
even, pledged responsibility as "a general/prime contractor, "(euphemistically calling
themselves, "construction managers"), to be responsible for all the work of, and for the safety of,
all trades and contractors onsite. See e.g. Sobczak v. Flaska 302 Ill. App 3d 916, 706 N.E. 2d
990, 236 Ill. Dec. 116 (1st Dist. 1999). This is just some of the data that awaits the careful,
thorough trial lawyer, and their expert witness. A set of profile plans for the project, which
include important notes, almost always are in the building department's job file. Usually, it is
cheaper to obtain these from the building department than from the Defendant. While one should
not hire an expert to "hold one's hand," early involvement can lead to promising facts for
theories of liability and critical evidence, key, real and demonstrative evidence can be obtained
and preserved.
The attorney must also become conversant/fluent in the language of construction. Each
trade has its own vernacular, its own standards and has its own safety rules and safety devices.
"Safety - speak" is an important area to learn. Fortunately, there is no shortage of sources of
information and resources, along with highly competent experts.
Information, Resources, and Evidence
I. Start at the top. If the job is large, and, especially if the injury is serious or involves a
death, notification must be given to OSHA. An OSHA report often includes a
witness statement, (although it may also involve some level of identity protection);
photographs, reports about key equipment or evidence the agency may have
inspected, tested, and operated. A contractor's "Citation History" may also prove
illuminating. If the contractor is fined and requests an appeal hearing it's a free
deposition, so put yourself on the list of notifications for the agency. You have a right
to be present and observe.
2. On small jobs, but not necessarily smaller projects, local police may have interviewed
the construction manager, eyewitnesses, taken photographs or preserved evidence. In
fact, statements by principals may prove decisive. When a jury hears from a
Defendant that the construction/project manager, or the safety professional, only had
"30 seconds," to act - but then, hears impeachment by prior, inconsistent statement
that on the day of the catastrophic occurrence the same person told the police that he
observed dangerous work for several minutes, fact-finding in a Plaintiffs favor
should be the result. Calloway v. Bovis Lend Lease Inc. (2013 Ill. App 1st 112746,
Filed August 16, 2013, rehearing denied, October 3, 2013) is just such a case.
Calloway v. Bovis Lend Lease Inc. supra. is the most current construction injury
case. It is discussed in this hand out.
3. No project is built without preliminary presentations. Whether to the local building
officials, the plan commission, the local Zoning Board of Appeals, or the municipal
trustees, testimony by the principals is a gold mine. Testimony can be reflected in
minutes of these governmental bodies. Sometimes, these are tape recorded or court
reported. Sometimes, it is even broadcast on local cable television, (past shows are
2
easy to obtain). Invariably, the principals will speak glowingly about the project, and
about themselves. They will pledge to follow all laws and safety regulations. They
could even state that the Defendant will "have charge" of the work or the entire site,
as the "general contractor" for the workers, general public, and nearby residents.
4. If the case involves a subdivision, go to the model (out of uniform). Pick up some
sales literature. Advertising, admissions by the general contractor will be included.
Likewise, statements about safety may also be included.
5, Labor Unions. Each trade on the job is probably represented by a union. Contact the
local. Speak to the business agent, or the union steward. Much can be learned by
such a foray. Each union usually has its own, local safety codes, rules and directives.
6. Law, Learned Treatise, and Voluntary Standards. These should always be explored.
OSHA is well covered in our materials. These include Frank Burg's "Most
Frequently Cited Serious Violations," and the table of contents for OSHA Section
1926, (attached). One need only inspect these to see the broad reach of OSHA,
covering virtually every trade on the job. OSHA Standards and Regulations, are
adopted by the Federal Government. They are "The Law". Compliance is
mandatory. A 60.01 IPI instruction on the standard of care should be given. Sobczak
supra. At P. 928. Local Codes such as BOCA, are also "The Law", provided the
governing municipality has adopted it. Almost all adopt a reliable code of one form
or another. They usually do not "reinvent the wheel."
State standards too should be checked, if applicable. I.D.O.T.'s "Construction Manual,"
"Standard Specifications for Road and Bridge Construction," the Illinois Accessibility Code, the
"Uniform Manual of Traffic Control Devices," and other reliable specifications or works should
be part of one's safety library. Keep a copy of the A.D.A, handy.
Publications/Treaties. Publications such as the "Construction Safety Handbook," by
Mark McGuirre Moran is a fruitful tool to explore job site safety, and safety "lingo." Harry
Philo's "L.D.R.", "Lawyer's Desk Reference" has lists of Codes, Standards, Experts, sources and
resources complete with addresses and even telephone numbers. "Introduction to Fall
Protection" by J. Nigel Ellis is useful. Voluntary Associations such as A.N.S.I., American
National Safety Institute, (A117 is the construction safety group), A.S.S.E., the American
Society of Safety Engineers, ASTM, American Society of Testing Materials, U.L. Underwriters
Laboratory, National Roof Contractors Association, Contractors & Association, National Electric
Code, AGC's "Manual of Accident Prevention," by the Association of General Contractors has
many helpful sections. Many Defendants are members of this national organization.
The National Safety Council, (1121 Spring Lake Dr., Itasca, 60143, 630.285.1121) can
also be looked to for a great deal of safety literature, safety films and videos. Illinois Safety
Rules of the Illinois Industrial Commission, is perhaps, an ancient document. However, it should
remain admissible on the standards of care. Pyatt v. Engel Equipment Inc. 17 Ill.App. 3d I 070,
3
300 N.E. 2d 225 (3'd Dist. 1974); Bishop v. Crowther 92 Ill. App 3dl, 415 N.E. 2"d 599, 47 Ill.
Dec. 594 (1st Dist. 1981); Averv v Moews Seed Corn Co. 131 Ill. App 2d 842, 268 N.E. 2d
561(3RD Dist. 1971). LePage v. Walsh Construction Co. App., 82Ill. Dec. 247, 468 N.E.2d 509
(3'd Dist. 1984). Templeton v. Chicago and Northwestern Railroad Co., 151 Ill. 2d 325, 603
N.E. 2d 441, 177 Ill. Dec. 371. (1992). Pozzi v. McGee Associates, Inc. 236 Ill. App 3d 390,
602 N.E. 2d 1302,177 Ill. Dec 130 (l'tDist. 1992).
Even standards promulgated after an event can sometimes be admissible to show
feasibility. See: Scott v. Dreis & Krump Mfg. Co. 26 Ill. 74, (1st Dist. 1975).
To be complete, one should also contact your client's worker's compensation carrier or the
servicing agency. The Worker's Compensation Act affords a lien upon any third-party recovery,
(Ch 820 ILCS 350) 1 et seq. I.R.S. Ch 48 §138.5). Knowing that it could recoup up to 75% of
the monies it paid puts the lawyer and carrier "on the same team." A smart adjuster will share
the insured company's contract with the general or prime contractor, and frequently has a
contract with the project owner and/or manager. The company may have taken scene photos or
witness statement. It will gladly share these hoping to recoup its losses.
Check the Defendant Index in the court of your jurisdiction. One may uncover prior,
similar occurrences- depositions and answers to interrogatories of all parties, and principals may
also be available. The internet yields a great amount or extent of source material. Most
municipalities have their codes online. These are easy to check. Be thorough in your
exploratory investigation.
Insurers also do safety inspections. As they enjoy the same bar of exclusive remedy the
Workers Compensation Respondent has, it should share.
A violation of a Defendant's own safety rules and/or manual should also be admissible on
the standard of care, and, upon the actual or constructive knowledge of the Defendant. Ryan v.
Mobil Oil Co., 157 Ill. App. 3d 1069, 510 N.E. 2d 1162, 110, Ill.Dec. 131 (l't. Dist. 1987). Gall
v. M.S.D. 109 Ill App. 3d 502 440 N.E. 2d 973 81-2004 (l't Dist.. 1982). Grant v. Joseph J.
Duffy Co. 20 Ill. App. 3d 669, 314 N.E. 2d 478 (l't Dist. 1974). Darling v. Charleston
Memorial Community Hospital 33 Ill.2d 326, 211 N.E.2d 253, 14 A.L.R.3d 860 (Ill. Sep 29,
1965). Calloway, supra.
If a violation of O.S.H.A. or a municipality's adopted code is proven, an I.P.I 60.01
instruction should be given. Tennenbann v. City of Chicago 60 Ill. 2d 363, 325 N.E. 2d 607,
(1975). Sobszak Supra.
4
The Law Of Construction Injuries
Each year many thousands of construction workers are maimed or killed. Most of these
occurrences are preventable, See: Harry Philo: "Revoke the Legal License to Kill Construction
Workers", 69 DePaul L. Rev. 1 (Autumn 1969). This article by "The Dean of Tort law," is still
as reliable and relevant today, as it was forty (40) years ago.
From 1907 until February 14, 1995, construction workers had the protection of the
"Structural Work Act," (also referred to as the "Scaffold Act"), Larson v. Commonwealth
Edison, 211 N.E.2d 247 (Ill. 1965).
This law recognized the real world and economic realities of the "hierarchy of
construction." It's stated beneficent purpose; to protect worker safety. It virtually eliminated a
Plaintiffs negligence as a verdict reducing or eliminating factor, unless - the Plaintiff's conduct
was the sole proximate cause of the Plaintiffs injury. This safety statute, like the Road
Construction Injury Act, was liberally, and broadly construed. Truth is: Many workers have
little or no power to refuse instructions whether from the employer, the general contractor, n/k/a,
the "Project Manager," or the safety superintendent. Construction is frequently, "if you won't'
do it, I'll find someone else who will" "we only get paid if we're laying pipe," (Calloway v.
Bovis Land Lease, infra, (2013). Workers will assume risks that they may or may not perceive
as reasonable because their families "have to eat" or "I couldn't let my boss down."
With the repeal of the Structural Work Act, (P.A. 89 2 § 5, eff. 2/14/95), the common law
was turned to for a level of protection. Fortunately, our Supreme Court in Larson v.
Commonwealth Edison Co., 33 Ill.2d 316, 211 N.E.2d 247, (1965), laid the groundwork, the
foundation, if you will, for future Appellate decisions - then to now.
Our First District's very recent, Calloway v. Bovis Land Lease, Inc., 2013 Ill. App. (1'1)
112746, (August 16, 2013) (October 3, 2013), is the very latest work on this complex and
challenging subject.
Justice Stuart Palmer, with Justices McBride and Howse concurring, wrote a
comprehensive opinion affirming the jury's verdict in favor of Plaintiff and a Plaintiff's
decedent, for over Nine (9) Million Dollars ($9,000,000.00) The claim arose out of a trench
collapse. The Honorable Clare MeWilliams presided over this trial which lasted 2-3 weeks and
"had many twists and turns."
In Calloway, a school district hired Defendant Bovis as its "Construction Manager." 1
The district hired/contracted with DuPage Topsoil, who subcontracted with Hamilton
Construction, Plaintiffs and Plaintiffs decedent's employer. Hamilton was hired to excavate
and install an underground sewer and storm water system. Defendant Bovis did not hire,
contract with, or recommend Hamilton for this work.
' Many Defendant's use the word "scheduler" or "manager" as a euphemism for "General
Contractor," "Prime Contractor," "Controlling Employer" or similar. Defendants surmise that a
mere "manager" has less control over the project or the work, operative details or not. They seek
to limit liability through the contract language.
5
On June 6, 2005, Hamilton employees, father and son, Henry Calloway, Sr. the foreman,
and Henry Calloway, Jr., were working in a trench as part of their company's job. The actual
trenching process was a required, specific, known, sequence involving at least twelve (12) steps.
These included:
1.
A hole is made by a backhoe or front-end loader.
2.
A "trench box" 2 is put in place, down in the hole. Alternatively, shoring or
sloping the trench to the angle of repose can also prevent cave-ins;
3.
Stone is dumped on top to form the bottom of the trench.
4.
Ladders are lowered down into the trench.
5.
Men go down the ladders into the trench to level the stone. This grading is done
by hand and shovels.
6.
The sizeable pipe to be placed into the trench is fastened to the backhoe;
7.
The backhoe picks up the heavy sewer pipe;
8.
The backhoe swings the pipe into position;
9.
The pipe is lowered down into the trench, unfastened from the back hoe by the
workers working down in the trench;
10.
The workers then lay the pipe and connect it to the pipe(s) already inside the
trench;
11.
The workers climb up the ladders out of the trench.
While the sequence was undisputed, the time it took for all this to occur was hotly
contested in the Calloway v. Bovis case.
On the day of the occurrence, work was halted by Bovis' Senior Supt. Construction
Manager, one Jim Blowers. Markings were exposed, indicating, that they were close to an
underground electrical cable. At the time of the event, Calloway Sr. and Jr. were down in the
trench 12-13 feet deep, attempting to locate the electrical cable by hand and shovel. It was
disputed whether the trench box had ever been in place, or, whether it had been placed but
removed and was sitting topside, in the open, right next to the trench, in the presence of Blowers,
and others. Apparently, the trench box would not fit, or, otherwise hindered the search for the
underground electrical cable. No trench box was in place when the trench collapsed. This was
contrary to Bovis' safety orientation plan. Senior was killed. Junior was severely and
permanently injured.
2
A "trench box" is also called a "shield". It's is a structure that should prevent cave-ins
and should withstand such forces to protect the workers in the trench. See: U.S. Department of
Labor, O.S.H.A. §1926. 650 (a) and (b) attached.
6
Bovis tried to escape liability by claiming it did not "entrust,"3 the work to Hamilton
since it signed no contract with this subcontractor, who was hired by the school district site
owner. While the contract specified Bovis as the owner's agent, it's fairly standard language
sought to place the manner and method, the operative details of the work, in Hamilton's control.
Our Appellate Court astutely reasoned that entrustment, like control, retained, or
supervisor/supervisory, was to be determined upon a totality of circumstances.
In its cogent analysis, the Court held that general contractors, owners, and project
managers could easily avoid or escape liability by mere contract language legerdemain.
This could trickle down to "immunize" all but the last and lowest in the "Chain of
Command", the hierarchy of construction, to the least competent, least insured, or immunized,
subcontractor. If also Plaintiffs employer it is free from liability by the Worker's Compensation
Act's (820 ILCS 32011 et seq), exclusive remedy of §138.6. The "moneyman" would escape
liability, the injured or dead workers would be unfairly compensated, and job safety - for all would be eviscerated.
Our First District ruled at page 27 of the slip opinion:
"Neverless, we agree with the reasoning expressed in cases such
as Henderson that the issue of entrustment, like that of control,
should be decided based upon whether the circumstances of each
case show that the construction manager actually entrusted work
to a subcontractor and not based upon a bright-line test such as
whether the construction manager actually signed the contract
with the subcontractor. As noted, the control requirement can be
met with respect to a construction manager where evidence of the
construction manager's actions demonstrates that it retained a
sufficient level of control, even where the contractual language
formally assigns control to the independent contractor. We see no
reason why entrustment should be evaluated any differently. Thus,
we find that the entrustment requirement can be satisfied when the
totality of the circumstances demonstrate that the construction
manager actually entrusted work to a subcontractor, even where
the construction manager did not actually sign the contract with
the subcontractor. Bovis' interpretation that entrustment can be
satisfied only if it signed the contract with Hamilton is overly
narrow and formalistic and we decline to adopt it. To do so would
allow project owners, construction managers and general
contractors to easily avoid the reach ofSection 414. "
3
"Entrust the work ... " is the initial phrasing of Restatement of Torts (Second) S. 414, attached.
7
The Court rejected as a "formalistic" "over reading" the I st District's opmwn in
O'Connell v. Turner Construction Co., 409 Ill. App. 3d 819 (1'1 Dist. 2011) (1-09-3442, 2011
WL 1124004). O'Connell held that if the Defendant did not sign the contract or hire the
subcontractor, it did not "entrust" the work, and, the issue of control is never reached.
While Calloway holds that "actions speak louder than words", of the contract, Turner's
construction contract in O'Connell, was far more restrictive in authority and control than Bovis'.
Turner's onsite control, supervision, and lack of involvement was juxtaposed to the extensive
involvement of Bovis in Calloway. Probably the single most important aspect was Bovis'
significant involvement with job site safety.
Blowers admitted he had authority to stop unsafe work, and, work that was not being
done in accordance with Bovis' 34 page site- specific "Safety Plan". Hamilton admitted it had
always followed Bovis' orders, including Blowers ordering the men out of the unprotected trench
earlier that day and on an earlier occasion - Thus Hamilton was not entirely free to perform its
work entirely on its own, but was required to adhere to Bovis safety plan, and its project safety
orientation- required attendance for all contractors, and subcontractors. This included a section
on "trenching", specifying that trench protection must be provided for any trench deeper than
five (5) feet; it's "common sense", "Rules of the Project". Bovis also met each morning with all
subcontractors, including Hamilton's Senior to discuss the work to be done that day. Blowers
and 2 or 3 other Bovis supervisors, including a safety man, also walked the job daily and
enforced the Safety Plan.
Blowers ordered Sr. and Jr., and/or two (2) other workers, out of the unprotected trench.
Immediately after this Blowers had a discussion with Calloway Senior. Right after this
discussion, Senior and Jnnior both climbed down into the 12 foot- 13 foot deep trench to hand
search for the electric cable. This was all done in the presence of Blowers. Blowers took a call
on his cell phone, turned around towards the backhoe while other workers were hooking up the
pipe. The backhoe had not yet swung the pipe in place when the trench collapsed.
At trial, Blowers claimed Hamilton men were down there only 30 seconds. However, he
acknowledged that he could have enforced Bovis' safety plan and orientation book by, "STOP!
GET OUT!" in 15 seconds or less. He admitted he failed at his enforcement responsibilities. He
also admitted he had given a statement to the police, and another statement two (2) days later,
which described at least several minutes of unprotected work. A Hamilton co-employee testified
that Blowers was right there - the whole time - as was the trench box - out of the excavation,
openly sitting, topside, and that the 12 step process took I 0-15 minutes. He also said that
everyone knew that connecting pipe to the backhoe meant that workers would be down in the
trench to hand grade the stone, and to position and unfasten the pipe.
Bovis claimed its contract restricted its authority to direct the means, manner and method
of Hamilton's work. "I left those decisions to the subcontractors." Blowers said. Neither the
jury, nor the Appellate Court bought into this. Bovis' actions, and especially its deep
involvement with control over safety, spoke louder than words. It had been prognosticated for
years that control of safety was the single most important factor in analyzing construction injury
cases, see e.g., Philo supra; B. Kohen, "Construction Negligence: Out from the Shadow of the
Structural Work Act," Ill. Bar Journal Vol. 87, p. 34 (January 1999). B. Kohen: "Construction
Negligence: A Cause of Action under Repair," ITLA Trial Journal p.l2 (2000).
8
See also I.P.I. 55 et seq., (attached here and incorporated by reference)
The 55.00 series of Illinois Patterned Instructions was drafted to codify the common law
after the Structural Work Act was repealed. Its formulation rests upon very solid foundation.
Larson v. Commonwealth Edison Co., 33 Ill.2d 316, 211 N.E.2d 247, (1st Dist. 1965) (a nonstructural work act case); Weber v. N.l. Gas, 10 Ill.App.3d 625, 295 N.E. 2d 41, (l't Dist.
1973); Wilkerson v. Paul H. Schwenderer, Inc., 379 Ill.App.3d 491, 884 N.E.2d 208, 318
Ill.Dec. 653 (l't Dist. 2008), Haberer v. Village of Sauget, 158 Ill.App.3d 313,511 N.E.2d 805,
100 Ill. Dec. 628 (5th Dist. 1987); Aguirre v. Turner Construction Co., 501 F.3d 825 (ih Cir.
2007), Aguirre II v. Turner Construction, 582 F.3d 808 (ih Cir. 2009); Bokodi v. Foster Wheeler
Robbins, Inc., 312 Ill.App.3d 1051, 1057-8, 728 N.E.2d 726, 245 Ill. Dec. 644 (l't Dist. 2000);
Brooks v. Midwest Grain Products of Illinois, Inc., 311 Ill.App.3d 871,726 N.E.2d 153,244 Ill.
Dec. 557 (3'd Dist. 2000).
Our Court in Calloway held at p. 58 of the Slip Opinion:
Bovis also claims that the trial court abused its discretion
when it gave the jury !PI Civil (2006) No. 55.00 series
instructions. Those instructions are based upon section 414 of the
Restatement and informed the jury what plaintiffs had to prove in
order for Bovis to be found liable. These included that Bovis
retained some control over the safety of the work and that Bovis
acted or jailed to act in a number of ways, including failing to stop
Junior and Senior from working in the unprotected trench.
Bovis' claim that the evidence did not support these
instructions is no more than a reiteration of its previous argument
that its motion for judgment notwithstanding the verdict should
have been granted We have already rejected that claim and for
the same reasons we find that the evidence supported giving the
!PI Civil (2006) NO. 55.00 series instructions and that the court
did not abuse its discretion by doing so.
The Calloway Court, in citing I.P.I. 55.00 et. seq. with approval, followed the long line
of cases that had adopted Restatement of Torts (Second) as "Standard of Care" evidence.
S414 provides:
§ 414 Negligence in Exercising Control Retained by Employer
One who entrusts work to an independent contractor, but who retains the control of any part of
the work, is subject to liability for physical harm to others for whose safety the employer owes
a duty to exercise reasonable care, which is caused by his failure to exercise his control with
reasonable care.
9
Comment:
a. If the employer of an independent contractor retains control over the operative detail of
doing any part of the work, he is subject to liability for the negligence of the employees of the
contractor engaged therein, under the rules of that part of the law of Agency which deals with
the relation of master and servant. The employer may, however, retain a control less than that
which is necessary to subject him to liability as master. He may retain only the power to direct
the order in which the work shall be done, or to forbid its being done in a manner likely to be
dangerous to himself or others. Such a supervisory control may not subject him to liability
under the principles of Agency, but he may be liable under the rule stated in this Section unless
he exercises his supervisory control with reasonable care so as to prevent the work which he
has ordered to be done from causing injury to others.
b. The rule stated in this Section is usually, though not exclusively, applicable when a
principal contractor entrusts a part of the work to subcontractors, but himself or through a
foreman superintends the entire job. In such a situation, the principal contractor is subject to
liability if he fails to prevent the subcontractors from doing even the details of the work in a way
unreasonably dangerous to others, if he knows or by the exercise of reasonable care should know
that the subcontractors' work is being so done, and has the opportunity to prevent it by exercising
the power of control which he has retained in himself. So too, he is subject to liability if he
knows or should know that the subcontractors have carelessly done their work in such a way
as to create a dangerous condition, and fails to exercise reasonable care either to remedy it
himself or by the exercise of his control cause the subcontractor to do so.
c. In order for the rule stated in this Section to apply, the employer must have retained at
least some degree of control over the manner in which the work is done. It is not enough that he
has merely a general right to order the work stopped or resumed, to inspect its progress or to
receive reports, to make suggestions or recommendations which need not necessarily be
followed, or to prescribe alterations and deviations. Such a general right is usually reserved to
employers, but it does not mean that the contractor is controlled as to his methods of work, or
as to operative detail. There must be such a retention of a right of supervision that the
contractor is not entirely free to do the work in his own way.
Restatement Torts (Second) S414 accurately restates the common law. This learned
treatise comports with the greater weight of authority. Interestingly, none of the comments, like
the Section itself, none focus on "entrusts," as the court did in O'Connell, supra. Unless the
contract's language and the Defendant's activities are so very restricted, reliance upon O'Connell
is misplaced.
Section 343 of the Restatement of the Law of Torts (Second) (1963-1964), "Dangerous
conditions known to or discoverable by possessor," of land has also been adopted by our Courts.
It can be looked to for a negligence case based upon premises liability in cases where Section
414 may not apply.
10
Section 343 provides:
Dangerous Conditions Known to or Discoverable by Possessor
A possessor of land is subject to liability for physical hann caused to his invitees by a
condition on the land if, but only if, he
(a) knows or by the exercise of reasonable care would discover the condition, and
should realize that it involves an unreasonable risk ofhann to such invitees, and
(b) should expect that they will not discover or realize the danger, or will fail to protect
themselves against it, and
(c) fails to exercise reasonable care to protect them against the danger.
COMMENTS
a.
This Section should be read together with s 343 A, which deals with the effect of
the fact that the condition is known to the invitee, or is obvious to him, as well as the fact that the
invitee is a patron of a public utility. That Section limits the liability here stated. In the interest of
brevity, the limitation is not repeated in this Section.
b.
Distinction between duties to licensee and invitee. One who holds his land open
for the reception of invitees is under a greater duty in respect to its physical condition than one
who permits the visit of a mere licensee. The license centers with the understanding that he will
take the land as the possessor himself uses it. Therefore such a licensee is entitled to expect only
that he will be placed upon an equal footing with the possessor himself by an adequate disclosure ·
of any dangerous conditions that are known to the possessor. On the other hand an invitee enters
upon an implied representation or assurance that the land has been prepared and made ready and
safe for his reception. He is therefore entitled to expect that the possessor will exercise reasonable
care to make the land safe for his entry, or for his use for the purposes of the invitation. He is
entitled to expect such care not only in the original construction of the premises, and any activities
of the possessor or his employees which may affect their condition, but also in inspection to
discover their actual condition and any latent defects, followed by such repair, safeguards, or
warning as may be reasonably necessary for his protection under the circumstances. As stated in
s 342, the possessor owes to a licensee only the duty to exercise reasonable care to disclose to him
dangerous conditions which are known to the possessor, and are likely not to be discovered by the
licensee. To the invitee the possessor owes not only this duty, but also the additional duty to
exercise reasonable affirmative care to see that the premises are safe for the reception of the visitor,
or at least to ascertain the condition of the land, and to give such warning that the visitor may
decide intelligently whether or not to accept the invitation, or may protect himself against the
danger if he does accept it.
As stated in s 342, the possessor is under no duty to protect the licensee against dangers of which
the licensee knows or has reason to know. On the other hand, as stated ins 343 A, there are some
situations in which there is a duty to protect an invitee against even known dangers, where the
possessor should anticipate hann to the invitee notwithstanding such knowledge.
11
c.
As to invitees who go beyond the scope of the invitation, as to either time or
place, see s 332, Comment I.
d.
What invitee entitled to expect. An invitee is entitled to expect that the possessor
will take reasonable care to ascertain the actual condition of the premises and, having discovered
it, either to make it reasonably safe by repair or to give warning of the actual condition and the
risk involved therein. Therefore an invitee is not required to be on the alert to discover defects
which, if he were a mere licensee, entitled to expect nothing but notice of known defects, he
might be negligent in not discovering. This is of importance in determining whether the visitor is
or is not guilty of contributory negligence in failing to discover a defect, as well as in
determining whether the defect is one which the possessor should believe that his visitor would
not discover, and as to which, therefore, he must use reasonable care to warn the visitor.
e.
Preparation required for invitee. In determining the extent of preparation which an
invitee is entitled to expect to be made for his protection, the nature of the land and the purposes
for which it is used are of great importance. One who enters a private residence even for purposes
connected with the owner's business, is entitled to expect only such preparation as a reasonably
prudent householder makes for the reception of such visitors. On the other hand, one entering a
store, theatre, office building, or hotel, is entitled to expect that his host will make far greater
preparations to secure the safety of his patrons than a householder will make for his social or even
his business visitors. So too, one who goes on business to the executive offices in a factory, is
entitled to expect that the possessor will exercise reasonable care to secure his visitor's safety. If,
however, on some particular occasion, he is invited to go on business into the factory itself, he is
not entitled to expect that special preparation will be made for his safety, but is entitled to expect
only such safety as he would find in a properly conducted factory.
f.
Appliances used on land. A possessor who holds his land open to others must
possess and exercise a knowledge of the dangerous qualities of the place itself and the appliances
provided therein, which is not required of his patrons. Thus, the keeper of a boardinghouse is
negligent in providing a gas stove to be used in an unventilated bathroom, although the boarder
who is made ill by the fumes uses the bathroom with knowledge of all the circumstances, except
the risk of so doing. This is true because the boardinghouse keeper, even though a man of the
same class as his boarders, is required to have a superior knowledge of the dangers incident to
the facilities which he furnishes to them.
g. As to the duty of a possessor of business premises to protect his invitees from harm
threatened thereon by third persons, see s 344.
REST 2d TORTS s 343
1965 WL 17671
Section 343 and 343 A "Liability For Dangerous Conditions of the Premises" apply only
to one in possession and control of property. Generally, this is the site owner. The owner can be
guilty of failing to warn or make safe, dangers the owner knew of, or, should have known of.
Ones that are not open and obvious. Genaust v. Illinois Power Co., 62 Ill.2d 456, 343 N.E.2d
465, 472 (1976). B. Kohen, "Construction Negligence: A Cause of Action Under Repair,"
supra. in a case resting upon §343 and 343A. Duty is analyzed in terms of likelihood and
reasonable foreseeability of injury, the magnitude of the burden if guarding against it, and the
12
consequences of imposing that burden. Buchelears v. Chicago Park District, 171 111.2d 435, 665
N.E.2d 826 (1996).
Concepts of distraction and forgetfulness of the danger may influence or ameliorate the
open and obvious condition defense. Ward v. K-Mart, 136 Ill. 2d 132, 554 N.E. 2d 223 (1990).
The deliberate encounter doctrine also reduces the harshness of open and obvious danger.
LeFever v. Kemlite, 185 111.2d 380, 706 N.E. 2d 441 (1998). If a Plaintiff has "no choice", but to
deliberately encounter the open and obvious hazard, i.e., it's the only entrance to the jobsite and
economic reality is that the benefit outweighed the burden, liability can still attach under
Restatement of Torts (Second) §343 and 343A. See also: Calloway, supra.
Voluntary undertaking by a Defendant may be a Plaintiffs "last ditch" effort to impose
liability. Nelson v. Union Wire Rope Co., 31 111.2d 69 (1964) 199 N.E.2d 769.
Working With Your Safety Expert
1.
When and How to Work with Your Safety Expert
It is suggested that the attorney contact the safety expert as soon as possible after basic
intake and initial investigation. A competent safety expert can direct you to the appropriate
OSHA section to use in the Complaint. He/she can assist in gathering other voluntary codes,
standards, and learned treatises. They can help shape your discovery requests. They can also
assist in valuing your case upon the strength of any egregious violations.
2.
The Expert-Attorney Relationship
The "care and feeding" of your expert is very important. Offer to meet at the expert's
place or time( s) of their convenience. Pay your expert's bills for professional time spent
promptly. Remember too, there is no privilege to shield offhand, written, comments or thoughts.
Anything transmitted to/from your 213(f)(3) retained expert witness is discoverable. Therefore,
take care what is documented between you. If you have a "secret" theory of liability, or, special
evidence, or, thoughts about the Plaintiff, the strength of your case, or even remarks about
counsel, a phone call is better than the shortest letter.
3.
Sources of Safety Experts
There are many sources that contain qualified experts. Many are already listed earlier in the
"Sources" section, including the Jury Verdict Reporter, or industry publications. Unions, the
National Safety Council, Engineering schools can all make recommendation. Talk to other
lawyers working in the field. Most will share their expert with you. If your case involved
complex training or retained control, supervisory control, or safety on a multi-employer job site,
and significant O.S.H.A. violation, OSHA instructors such as Frank Burg, (materials included),
Dennis Puchalski, or many others can be consulted. See: Gary D. Smith, "OSHA Regulations
Violations. A Standard of Care extended to Third Party Non-direct Employers on Multiple
Employer Work Sites," Professional Safety July 1991 A.S.S.E. at 35.
13
4.
Testimony of Safety Experts
Expert testimony and evidence in this area is the same as in any other. The expert's
opinion must be to, "A reasonable degree of certainty". Article VII of the "Illinois Rules of
Evidence," ISBA October 2010 attached, allows expert testimony if it will help the jury, (Rule
702). The expert should have a solid opinion with sufficient bases offacts and data. These may
even be facts or data that are not themselves admissible, (R. 703). Opinion upon the ultimate
issue is expressly authorized, (R 704).
Conclusion
While good safety practice has an element of common sense, safety is truly very
sophisticated business. Working closely with a safety professional is one key to unlock the
puzzle of vicarious and direct liability of one or more culpable contractors.
The standard of care continues to evolve in these cases. Good trial lawyers practicing in
this area of law will continue aggressive, thorough work to fully protect the rights of injured
workers.
Respectfully submitted,
/2;.,0F~OF MARTIN L. GLINK
~~nk
14
Safety and Health Regulations for Construction
https ://www.osha.gov/pls/oshaweb/owastand.display_standard_grou ...
A to Z Index
fl)SHA
OSHA
5atety 8lJiealth Administration
Occupational
Home
Workers
Regulations
Enforcement
uickTakes
Newsletter
I En espaiiol I Contact Us I FAQs I About OSHA
WRSS Feeds
We Can Help
Data & Statistics
E) Print This Page
II
D:Text Size
What's New 1 Offices
Publications
Safety and Health Regulations for Construction
General Industry
Maritime
Construction
Record keeping
Agriculture
State Plans
All
• 1926 -Table of Contents
• 1926 Subpart A- General
• 1.9_2_Q_,_l..:EYIQQ_~_9Jld...!b.Q.P~-
• 19_26.2__:__1.1ariml!:;e.s1r.om. SQfe.tY..and
hea!t!Lstan_ctard.s~
• 1926.3 -Inspections- right of entry
• 12.2_6,_4__.:_R_L!l§_Qf_.P..Fi!~.t!.!;:.!,LfQui_O!llini_@'_g_tjye <@!Jr.licaJjoos for enfol-cem_~.o!.Qf...~.t<:lt'i..i.!m.t.h~lt!:Lstandqr-9~
•
12.26.,.5_.:...m'~Ji,~;;ontr.o!..o.Ymbgr_s__l!ndeLltl_eR<;~p.eLw_ork__ Bm!.u.ct]Q_11Ac!,
• 19:?6 6 - Incorooration by reference.
•
l.~.f§._.SYb.PmiJ~__:_G§!1.§.1J!l1D.ffirn_@~Jj:Q!l$
• 1926.1_Q:-_s_c_Qlli!_.9f.S!.!.P.Pil.It..
• 1926.11 - Coverage yoder section 103 of the act distinguished.
• J.926.J2:RE!Or..Q.i'!.!J]gj_tjQ_l]_f@O__NQ_,_l_"lQf__l9_5_Q,_
• J..92. 6.J.3..:.lD!eiPJ~@_ti_Q_o_:Q!'__~j:_Y.OC!JY_ieLfi§,_
• 1926.14- Federal contract fur "mixed" tyoes of performance.
• 192-§.._1_5 - RelatiQnsb.lR. toJt:t~.S.e.tY..lt::e..C:OOtrl!kt~t;__W.;..Lr;;h:.lie.a_~'Lf'1!bJLr:;__Q)_o_trg~;~_Ao;;.t
• 1926.16- Rules o{ construction.
• 1926 Subpart C - General Safety and Health Provisions
• 1926.20 -__Gen_e;:m_l
•
saretv,_Q.mtb.e.a!tb.Q!Q'lision~
.~2!i2J._:~fety__IU!]DlQg____gnQ_~_!JJ&.t!Q!l,
• 1926.22- Recording_ru1d reporting of injuries.
• l9.f._§_,_f.3__~ . fiait21d__ g_nd __m5!_ill_GQJ__g_tt_eotiol!,
• 1926.24- Fire protection q_[l.Q_Q[eventiQO,
• 1926.25 - HousekeepiQ.g,
•
.12~9.2§_.:J[l!,J_t]_ll!_l_q_ti_Ql]_,_
• 1926.27- Sanitation.
• 1926.28 - Personal protectjve
•
• 1926.30-
•
eq~nt_
1926.2.9_:_k£eP..W.bl~ ..t.er.!:lficg_t(QOS,_
Shipbt~i!diog
and shjp reoairing .
12_:2_Q,_::u__:JB._§_~t:Y§!;l_,)
• -~26.3_2_.:J)..ef!D.it.lOl!S,.
•
J£ZP.J~
- /JI:.cess to employee exposl!ffi and
medical records.
• l9.4QJ_4...J1f!P_tls._~es,s,
• 1926.35 - Emoloyee ememency action plans.
• 1926 Subpart D - Occupational Health and Environmental Controls
• 194!5.JD...:....t1~.!~&.L~!Yit.es_a_oi;Lftr_~_@~
•
•
!2.2!5.c50..~QR_A_-_Me!1i_C_Q_[_;;.eJYjf~_!i.i:!D.d..Jlr.st9lcl_.
~51-
Sanitation.
• J.9.2.9_,.5.2__:_Q:_c_wpl!l!o_fJi:!L(I_Q.l~-e:l!:llQ.~V.re_,
• 1926.53 - Ionizing radf.a.tlm!.,.
• 1926.54 - Nonionizing r:adii!ti911.
•
l!ll:.6___.55_:_G_g_~... Y.fl.ROr§..__fymes,J';I_u:'l~-gnd... m.isJ:s.,
•
I of9
12~_QQ___A____:
Gases
vapor.s,.Ji!!D~!!StS.-
and mi$__,_
10/25/2013 4:57PM
Safety and Health Regulations for Construction
https ://www.osha.gov/pis/ oshaweb/ owastand.display_standard_grou...
• 1926.56 - Illumination.
• !9l.Q...aZ..::j!e.D..ti!i!ti.O.D.,
• 1.92Q,.5.8..::J8r:.~I~J
• 1926.59- Hazard Communication.
• 1926.@_-
Me1bY~ILeQ.@rlj!iDJ~,
• 1926.60 App A- Substance Data Sheet for 4-4'-METHYLENEDIANIUNE
• 1926.60 App B- Substance Technical Guidelines MDA
• 1926.@_8QILC:__Mecllcgl_S_l,l_t:'&Uian~e_§_ulde1Jne.s.foL.M.P..A
• 1926.60 Aoo D- Sampling and Analytical Methods for MDA Monitoring and Measurement Procedures
• 1926.60 Apo E - Qualitative and Quantitative Fit Testing Procedures.
• 1~§,.9_L:_8§:~JJ.ti.Q_Q_Qf..QQI.J!t<;IL~J!!9s-"·-12@!;ill".ill; and labels.
• 1926.62 Lead
• l326.6LAQQ..A.:_SY_Q__stQpce Data Sh€§1 for Qq;yQ9tl9..og.U;:~p-~l!t:~.t9_1&_as!
•
l5!26.62_AQQ_IL:-_E!D_pJo~
Standard Summ_qry
• 1926.62 Apo C - Medical Survei!!Qnce Guidelines
• 1.9.22,22..8J:HLQ..:..Qu_g]_i@...t._ivs!__Q_O~LQiJantii;g_t:ly_e_£it Te:&_f'_rotocoJ_s
• 1926.64 - Process safety management of highly hazardous chemicals.
• 1926.64 App A- List of Highly Hazardous Chemicals Taxies and Reactives (Mandatpr{!
• 1_9_?2,_P.;tA02J.L:,.e.lQ!';.k..E!m~J~.igg.nlm __and Si_m!llifj~Q__ Process fJg.Yi_Q@grgm_QJ_g_nmaQOi!.ID!Y)
• 1926.64 ®P..k:iillDPiiance Guidelines and Recommendations For Process Safety Management <NonmandatoM
• 192§_,_Qi__8pQ__Q_: __!;iQ1JJCes_Qf_Ey_rj:_Qgr_ InfQUil.9JLOD.J!iQ.DID.9JJ..!Ji!!P_ry)
•
_l~_9_,_QS_:_tf_g_zgr_Q_g_yS:_WSl~!;e._QP_e_rgtjg__os__g_o_Q_~lileroency_r~llQDE.-.
• 1926.65 Aop A- Personal Protective Equipment Test Methods
• 192§_,_65 ~PP--~-:_il_ene@]__j)_egr:iQ_tiQ_n_gDQ__Qjgussion_Q!J.tle_J,.e.Y.e§_g.f.P..r.Qtg_~Jjg.r.Lgn_d... f.:'mt~i\I.~.-G..§I
• l9.lQ,_Q_5_8,pQ_!:.:_CQmp_li_gnce G_y_jdel[o_es
• 1926.65 Apo D - References
• 1.9..i?..Q.&!J...W.Q.f..:_T@.!D_ing_!:YITLGYlY!Il_(iujQ_eline_s----=--1':!9n:m_a_odalm}'
• 1926.66 - Criteria for desig_n__g_nd construction of spray booths.
• 1926 Subpart E- Personal Protective and Life Saving Equipment
•
.t~@,.95_.: ..C.rJtg_ti91PL.P.~~oill p_rQl;_e_give _e_q!JlRmS!nt_
• 12f.Q,2.Q..~-~C!J.P.2ti.Qo.aJ..fQQt.Q.LQtg~_Q!1_
• 1926.97 rReservedl
• 1926.98_:_[Beservedl
• 1926.99- fReservedl
• 1926 100 - Head orotection.
• _!9_;?§_,JQ,l_:l:!_e_a_ri[l_g __p_[Q_t:ectf9Il_,_
• 1926.102- Eye and face protection.
• l92-_Q_.1Q_l_~_B§Qi_@JQJ.Y.P.I.9.~ti9!h.
• 1926.104_.::..59..f.e.tv.. b.e.~~...!ife!.lr:!.eS,_.Q_!]_Q_l<.!DYMQs.,
• 1926.105 Safety nets.
•
l~_2Ji_J_Q.Q_:_WQ[_Jg!}g_QYS!s__p_r__n_e_ac.w__g_~£.
•
l9_2Q,_;tQZ_:_!:Le.flD_ill.ons_<.!QPJ.!ha1!!~1Q!bl-'i.liYb.P.att.,
• 1926 Subpart F -fire Protection and Prevention
• 1926.150- Fire protection.
• J9.ZP.J,5J_:£i@_p_.r.§_v_e..o.t\Qo.
• 1926.152- Flammable
•
li~
.l9.4§_.1Q_l__:___!,J_guefi§d___petrQI.e_!Jf!l_gg_~(_I,P__:_G9.?1.
• 1926.154- Temporary_!]_ep_Qag_df!.Y.l.~.e.~...
• 1926.155 - Definitions applicable to this subpart.
•
.t926_j_~6-
Fixed_e)\!:]HO.Y.!Sl1.!D9.. WSID.!I!ll,.gsme.rg1
• 1926.157- Fixed extinguishing systems gaseous agent
• 1926.158- Fire__Q.e.te_g;l_QJ:l..ffi'Stems.
• .t21.P..J.:?.9.. :...J;mplQY.§.LSJJi!tm.S:YJ;1§.JIIJ;_,
• 1926 Subpart G -Signs, Signals, and Barricades
• 1926.200- Accident prevention signs and tags.
2 of9
10/25/2013 4:57PM
Safety and Health Regulations for Construction
https://www.osha.gov/pls/oshaweb/owastand.display_standard_grou ...
• 1926.201- Signaling .
• !92§__,2,_02 -Ji;;~r.r.ll;.~Q§.
• 1926.2!U.::.J2Wnitions__g_QPJic_<!.ble_JgJbJ.:?...s.ubp_Qit
• 19.f§ Suboart H - Materials Handling. Storaae Use and Disposal
• 1926.250- General requirements for storage.
• 1.2J.6.,2St.:...Rigg!og__ gquJgmmt for _mate_riPJ.t@nQJJog,
• 1926.252 - Disoosa! of waste materials.
• 1926 Subpart I- Tools- Hand and Power
•
192._QJ.QO.:Jiem.§.@~_rnel!ts_._
• 1926.301 - Hand tools.
• 1926.302 - Power-operated hand tools.
• 19.l§dQ1.:...1\b.@!ili"e wl1eels_gnd !QQJ?.. .
• 1926.304- Woodworking tools.
• 1926.305 Jacks-lever and ratchej screw and hydraulic.
• J9.ffi_,JQ_6 - Air r~(;.~JY.!::Il>,
• 1926.307- Mechanical power-transmission apparatus.
• J91.§..~QQQrL.L.-:..W~!Qfna.ilfl_d_Gu!1iD_g
• l~.!U..SJl=--G_gs_wgldJog_gJJ_d..t!!tting_,_
• 1926.351- Arc welding and cutting.
• 1926.352 - Fire oreventlon.
• 1.9.26.JS3 .:..Y..e.o.tiJg!ion_and_QrotectiQ.fJJOJ.v.~IQlng,___QJ_l;tlOg_,_~Ils!.ll!&Yoa.,
• 1926.354 Welding cutting and heating in way of oreservative coatings.
• 1926 Subpart K- ElectriC\011
•
12~2,..,400
:Jntr!X!_l.!.(;.tiQo.,
• 1926.401- fReservedl
• 1926.402- Applicabilitv.
• 1926."\Ql:.. G~-~ral r§g~
• 1926.404- Wiring desion and pmtect:ion.
• 12f.§AQi_:: Wiri[l__gJIIg.tb.QQ;;;,..m!!lQQnen~_w{!__g_qyjp.mmttqr__generaiJJ~~
• 1926.1:Q.6.. :::.S..Q~.itlc_p_11.ffiQ~ffi!,tiRmenLandJ!lstQUQtiQo;;,
• 1926.407 - Hazardous <classified) locations.
•
-~_,_10Jl____:::__?_QeQgl.§tgg.m.!ii,
• 1926.409 - rReserve_Ql
• 1926.410- rReservedl
•
192_9_,_-f.!.:t.:::JR~~J
• 1926.412- fReservedl
• 1926.413- rReservedl
• J2.2_Q,114 ~JBg~f.Y.e_QJ
• 1926.415- fReservedl
•
l~-~Q,_4l§_:::.§.e_flg_@t~Irem~n§..
• J926.41L:::J,~kojJ_LqnQjggg_[lliLQf...ciKIJ~
• 1926.418- fReservedl
• 12;:!6.4:1,9__:1Belif!.!Y§.QJ
• 1926.420- !Reservedl
• 1926.421 - fReservedl
• 12~Q.,iff_:1B~s.e.rxe.QJ
• 1926.423 - fReservedl
•
.!~.4.9_,424- rR.e_~tygQ.J
•
!9.2Ji._4_25_:_lli~.!.Y§QJ
• 1926.426 - fReservedl
• !926.4ll_-..LRi!1!_etvedl
• J-926.4.2.8.::1B-1!.~ry.e_QJ
• 1926.429- fReservedJ
•
3 of9
_l2__2_§_.,1JQ__.-_[_&e_~~gj
10/25/2013 4:57PM
Safety and Health Regulations for Construction
https://www.osha.gov/pls/oshaweb/owastand.display_standard_grou...
• 1926.431 - Maintenance of eauipment.
•
1226.43_2_-_.f.f.!Yjf..9_[1J!I.§lt9l.Qe.te.d9Ii'!!1.9ILQ[!N!llJLJTI~H.t
• 1926.43:l..:.[B@_s_ervedl
• 1926.434- fReservedl
• 1926..435 .:.1Re~r.t.e.9J
• 1926.436 - fReservedl
• 1926.437 - fReservedJ
• 192_Q..1.:l$..~.[Rese~QJ
• 1926.439- fReservedl
• 1926.440 - rReservedj
• 1926.41l.:..~tt-~!les qmi__Q_qtJ&!YJtm_rgjng_,_
• 1926.442- fReservedl
• 192Q..j43 -J.B~~rved]
• 1926.¥11.. JReserveQJ
• 1926.445 - fReservedl
•
19.2Q,_41fi_-___ffi~.lie:!Ye.QJ
• _1926.447- fReservedl
• 1926.448 - fReservedl
• JJJ?.Q,±l2..:_Qgf!ni!iQ~_fl_pQ!)ci'!11.!g...!;Q ..tbis subpgrt,_
• 1926 Subpart L- Scaffolds
• 1926.450 - Scope. application and definitions aoolicable In this subpart.
• 1926.451 :.~~~l@._!,!i&l!leiLts,
• 1926.452- Additional requirements apo!icable to specific types of scaffolds.
• 1222,453 - Aerial lifts.
• 12.2.2,.1.~_4..::.. Irainlng_r_~mt!re.mf!_@i_,
• 1926 Suboart L Aoo A- Scaffold Specifkations
• 1926 Subpart LApp B- Criteria for Determining the FeS!.lilQilitv of Providing Safe Access and Fall Protection for Scaffold Erectors and Dismantlers
• 19.1-J! Sub.oiD:tk..OO_p_C_:_Jj_~_.oLN~.tiQn<lLCQo~_n_s_y~_S@.oQ.gffi~
• 1926 Subpart L Aoo D - list of Training Tonics for Scaffold Erectors and
Disma~
• 1926 S.Yl2PJlJ!J.ApQ_~_:__Q_rawLO..Q~..<md_lli!!_stratLcm~
• 1926_S.LillP.i!rt.M ..~.Eiill_P_r_otect!Qn
• 1926.500 - Scooe. application. and definitions applicable to this subpart.
• 1926.501 - Dutv to
•
have_____fg_JJ_pr~tion.
,t<,1~§.,S_9l__:_EQ!LJifQ!;§.;.tiQil_Sjlgg__ms
cJit§f.l9._.and
QHICti~e_s_,
• 1926.503 -Training requirements.
• 1926 ~L!P.P..I!r:t.t-:1_.8Qp_A.:_~-~nJ1J!Jlo_g__B_oo__fJrVJQ!b.(!..:JiQ!l-mandQ_\Pfl.§.!Jill~lin~fQLCQITIPJ¥lo.a..w.itb.J2.ZQ.501_{b}(1Q)_
• _19.£6 ..S!.!.bP_<litM_ll._pJ!JL~.J~y_ar_Q_rn_il.S¥str;:.ms..:_~.on-Mandato_ry:_G!!.ld.f!Jines for CompJylD.Q..W..itb. J92Q,_S_Q2.(tl)
• 1926 Subpart M App C Personal Fall Arrest Systems- Non-Mandatorv Guidelines for Complying with 1926.502Cdl
• 12Q Subg_artt-:l..~oQ__Q_:
Positi.Qfli!J.Q..Q~ce S~:J~I_Q!J.:M.QDQ.qi;Q_ry_Gu.i!itiJ.i!JS:SJQrl=9Jfl_pJ¥iD9-Wlt!Lt9.2Q~lfm
• 1926 Subpart M App E- Sample Fall Protection Plan- Non-Mandatory Guidelines for CompMng with 1926.502Ckl
• 1926 Subpart N - Helicopters Hoists. Elevators. and Convevors
• 1926.5_5_Q__:.IB.f.servs;!_9J.___Bgg§.iQ.Mt~:!,.226.15_QLQy. new stgndard ig;_yg_d.1illgust_2J_Q__lQ,_JD_.tb.~...~9_!lliiLReaiste~ 7~£!3...4.8134
•
1926,55l___:__jjfl:!i~Qnters.
• 1926.552 - Material hoists. personnel hoists and elevators.
• 1926.55.l.:...6QSfl:.-m..o_uo.~..rw:o_b.olsts...
• J...22.6.~5.±=---0vedJead.h9i~_,_
• 1926.555 - Conveyors.
• l9..29.SS_Q_:_8J~L!i:!!.Jifts.
• 1926 Subpart 0 - Motor Vehicles Mechanized Equipment. and Marjne Opetr~tions
• 1926.600- Eouipment.
• 19.26.6._01..:...!'1Qtor y_~__k;les.
•
~l.Ji_,QQl__:_.!:'I_<JtelliLbanQ.!i.O!l_eQ_y_ip_ment
• 1926.603 - Pile driving oouipment.
•
4of9
l926,_6M:,S.i.t~J;;teariog,
10/25/2013 4:57PM
Safety and Health Regulations for Construction
https://www.osha.gov/pls/ oshaweb/owastand.display_standard_grou...
• 1926.605 - Marine ooerations and eguioment.
•
•
J.~;?.§_,§.Q§_-
!2_~~.i!.!1.P_-
Dgfj.IJ_[ljQD.fi:..9.P..P..U!';.9_b.[e..J,<:Ltb1~~l!-b.P_l!!l_
Excavatioflli
• 1926.650 - Scope. apolication. and definitions applicable to tl1is subpart.
• 1926.651- Specific Excavation Requirements.
•
JJ!2.Q.652__:__B_erudr_gmentsJ9LP.mte.!';.ti~e..~§...tgm.s.
• 1926 Suboart P Ann A- Soil
Cia~
• 1926 S!!b:Qm"l P App_j3_- Slooing_gnd BenchiQg
• 1926_s_yQpart P Apg C- n.m.P_gi..S.bmJo.g__f.gr_.Irenc.b.e.~
• 1926 Subpart P Apo D- Aluminum Hydraulic Shoring for Trenches
• 12:l:.!LS!.!bmrt..P-..8PJLf;__:-_.8!tema..tives_to Timber $b_Q!j.ng
• 122-.R.S.!J.t!.P.ar.lP....ARP..E..= Se~t)Q.n_Qf_PfP_re_c_tive-.Sy.stem_s
• 1926 Sy.J2P.art 0 - Concrete and Masonry Construction
• 1926.700- Scope application and definitions app.l.i!:a.!Jie to this suboart.
• .!9.£9. 70.l.:..~.~D.eJ9J..rw!!irem_enl:!j:
• 1926.702 - Requirements for equipment and tools.
•
12_:?:2,19_LReg_ulr~~o_~:S__fQr_cgst~lfi:_Qlg£e_Q.I.!lC.L~te,.
• _:19.29. 703 8Qp____:-__G.e_n.e:mLRoouir.l'1.m.e.n~..f.or..f.Qrmw.Qd:
• 1926.704- Requirements for precast concrete.
• .19.292Q5...~ . B._e.a_Yire.ments_lQ[.Jll'J;:s!Qb___o_p.e:r!lli9_ns__,
• 1926.705 App- lift Slab Operations
• 1926.706- Reauirements for masonrv construction.
• 12_26 SubR9~__8__:__B.~_r:§m;_g_sJ;g__S..\J.P..R.9.LtQ..9f.J3l.rt 19_:?:,6
• 1926 Subpart R - Steel Erection
• 1926.750- Sco~
•
19..~15./...::..J::!e.f.loi!:i.om,
• 1926.752 Site layout site-soecific ere(;.tion olan and construction seauence.
• 1926.753- Hoisting and rigging,_
• J926__,?_5.1..7..2.tr.V.!';t.V.@.!..~e.!;l_9~__m__b_!y,
• 1926.755- Co!wnn gnchorage.
• 1926.756 - Beams and columns.
• .t9l..Q.J'.5l_:J:I_pg_llweb ste.eljQi_sts"
• 192.§.12B...:...Systems engineered metal buildings.
• 1926,__7__29__-:_Eg.l!ing __Q!;)jeg__QI_Q_!g~Q.Q,
• ~__l__G:Q.: Faii.QIP~ctio__n,_
• 1926.761- Training.
• 1926_S.Y.bQQr.tJL,ll,p_p_8_:_\3_!J.lr.!e.!lne.!i!.fQ!'_!:l.5.@t!lis.hinq tflli_C.QmQQnents otas!re~fu;_J~r.e.c;tiQilJ!.@n;_Jl!Qo:_l'1ai!.d.ittQr:y_G!!kielli'J.§li_fQr..QJ.mP..Mm...Y.ii.tb_!92fi]..5.f.{el.
• 1926 Subpart R App B - [Reserved]
• 1926 Suboart R ApQC- Illustrations of Bridging Terminus Points: Non-Mandatory Guidlines for Complying with 1926.757Ca)(1Q) and 1926.757CcXSl.
• J2f..Q_S!J.bJlQftR__A_2p__ Q__:_lllustr_g_tism__Qf__ti)_~_I,J~_.Qf..Q!.o.!r.QL~!!l.E;;;Jp___Q~rnqr_c;_qt!il_QmtrPlleQ. __Q_e_c_~ll'!q_Z9I!§_(_C.QZ.S)_;_I'ill.fl:mandatQ_ry Guidelines for Comply!og_~tb
mG.76Jl.(<;KlJ,
• 1926 Subpart RAppE- Training· Non-mandatory Guidelines for Complying with 1926.761.
• 1926 Suboart R App F- Perimeter Columns: Non-Mandatorv Guidelines for Comotving with 1926.756(el To Protect the Unprotected Side or Edge of a
Walking/Working Surface.
• J..2fP SubRart R AQJL.G.-=-1229"_5'_Q:?._(bl~(§).Ji;~lLPI9~Ction .S.y~~-C:rit§ria and Practices.
• 1926 Subpart R App H- Double Connections: Illustration of a Clipped End Connection and a Staggered Connection: Non-Mandatory Guideljnes for Complyiog
with 1926.756(c)(l)_
• 1926 SubpartS - Underaround Construction. Caissons. Cofferdams. and Comoressed Air
• _t2_2.§,800_.:J)_ndergrmmd_Qm~!:.r.!J.!;ti.QO
• 1926.801 - Caissons.
• 1926.802 - Cofferdams.
•
_l,2Q,B.O..l.:.iPJ!l_prj!_~_ffi~;_
• 1926.804 - Definitions apolicab!e to this subpart
• 1926 SubpartS App A - Decomnress.J.Qn
T~
• J.U6 Sub.P_<!t1L:..QS!m9Jlt!2o.
• !22Q...BS.Q..::..EteP_arg___IQ__ry_Qp_e.@ti_m-':!,
5 of9
I 0/25/2013 4:57 PM
Safety and Health Regulations for Construction
• 1926.851 - Stairs passagewavs and
•
https://www.osha.gov/pls/oshaweb/owastand.display_standard_grou...
ladd!;llii~
1926.851..:_(:hu~.
• 1926.6.53 - REillJ~gj_gfm!.'!tt!J@~.ttlr.Q!.!gtLftQQr QQeDlOQS,
• 1926.854- Removal of walls. masonrv sections and chimneys.
• .1926__,a5_5-=---.M_ao!!aLr.e.m_oy_a_!_gf_floors.,
• 1926.856 - Removal of walls floors and material with
~
• 1926.857 - Storage.
• 194.!i-.!!.S..8..7_!1f!.m9J@J...QE.~eLl:;9Il_~1DLGti9A.
• 1926.859 - Mechanical demolition.
• 1926.860 - Selective demolition by explosives.
•
l'lf.t;i_Subpart_ll.:_el?~_l}g_Ml_9 the_t,J_~gf_~.PJillil'!!i!2
• 1926.900- GenernLR.[QYis\gns...
• 1926.901- Blaster qualifications.
•
J.32~9Q2_:_S1l_®ce transoort_qtion_Qf_ex_pJg;:;J.y_~"-
• 1926.903 - Underaround transportation of explosives.
• 1926.904 - Storage of explosives and blasting agents.
• J2.f_Q,905 _- Loa_iij_ng__9_f_!!_XRiosiy~_Q[
blastiag_g_g~l}~,
• 1926.906- Initiation of explosive charoes-electric ~
• J.92Q._9QZ_~_..!J.~ . 9L~l~.!Yl!1~~
• 19..29.,9.0.fL:__I.,Lse of_Q.§;Qfi?J;i_v_g__c_p_nt
• 1926.909 - Firing the blast.
• 1926.9lQ:.lQSR.~I;iQ!U!.ft.e.Lb.IP..s1ing,,
• 1926.911- Misfires.
•
12.~912-
Underwater blasting.
• 1922,9..U..-.Jlla£;ing in excavatiQo__w_ork yru;!_er C.QDJ.Pr:e.lilieP__9_i.r,
• 1926.914- Definitions aoplicable to this subpart
• 1926 Subpart V - Power Transmission and Distribution
•
.t2.2!i25.12_:_~ne@LrgguiremJW_~
• 1226:,2.:SL.I.®ls anci_RI9tectlye__s:g_ujp1IJ_e.IJ.t,
• 1926.952- Mechanical eqiJ.iQ.roent.
• 1926.953-
Mai~I@JlHmdJliJ..Q,
• 1926.954- Ground.ing_for protection of employees.
• 1926.955-
Overhem.L!.l!:la~
• 1£1_2§_,_9.J:Q.:JJ.o.d_groro.!:-l..D.d_Jlo~,
• 1926.957 - Construction in eneraized substations.
•
1926.958.:_.!;~rni:!Lioo!Ll:mJ~_QP.t§a;~
• 1926.2:?.2...:.1Jnem.sm:s.J:!QQ~ _Qe.ll£-_sa_re_ty_s!Lap_s.__gru!.!a.oYS!.r.d~.
• 1926.960 Definitions applicable to this suboart.
• 1926 S!!9P.f.lJ.t.W_:::_R_Q!Lqy_~_r_q_~tive_SJ;ruQ;!l@_~;,Qye..tb~.d_e[Qtection
•
l~_9_.S.!:-l_b.P.9r.t1\I-..8QP__6__:l\pQ!ID9lx_ll._tQ_S_I)..Qp.2...rt.W....:.:.. fi9...l!r_g_§_W:H1hr:9J!9b_W:::l.S
• 1926.1000- Rollover orotective str11ctures CROPSl for material handling eauipment.
• 1926._lll01 - M.loim.Ym_Qe._rfQLm?_llC.f:_q];eria___fpr_r_otrQVer_p.rQ.tg_(;ti.Y.liL~Ll,!J;.t!Jres fQL@j;jgJlQ~Q_grfl_p~a;,_lqgPer!?,_J!m:~ graders _aD.P_crawler tracl;Q[~
• _l22_6.10_Q_f..:..P.J.Q.t§.g)_~_.f@@_s_(_m!l:_QV___s:r__Q[Q_~!i'Le_!~jJ!J.~t.t.t(tl.$,_l!.D.9.W..!l.2::iJ~QE_SJJQ!'_.W_b~!:h'Pg__ggrkWt!Jrglq_rutinduWial t.@ctors _y__!'@ in constructiol'1.
• 1926.1003- Overhead protection for operators of aoricultural and industrial tractnrs.
• 1,_2,?_2 Sub!@t~_:::_
LaQQ_~
• 192§.,!QSJL:.2W.P§_gp__plication._.91l!LQ_eJio!J:JQD.$.i!.QPJLQ.!ble to this subpart.
• 1926.1051- General requirements.
• 191_6.1052 -:.Stairw_qy~
• 1926_.1(!5_3__- lq_Q_d_!;!_l?.,
• 1926.1054- fReservedl
• 192Q,lQ2.~..:.LB.§.!!e..1Y..e.9J
•
192Q,_lQ2_Q.:_L~~.GleQJ
• 1926.1057- [Reservedl
• l2#:6.l_Q.!_5_f.L~.1Re.~!Ye.QJ
6 of9
10/25/2013 4:57PM
Safety and Health Regulations for Construction
https://www.osha.gov/pls/ oshaweb/ owastand.display_standard_grou...
• 1926.1059- fReservedl
• J926.to6o- _Ir.glo.ing_.rooYJL~.r:nJID_~
• J_22.6_5_yJ;mart K~PQ..A.::JJI_O_@LS
• 1926 Suboart Y - Commercial Diving Operations
• 1926.1071 - Scope and application.
•
l!ilJ:..Q.,l07:L-_D.§fmltiQO~
• 1926.1076- Dualifications of dive team.
• 192_Q.J.Q.e_Q_ :._Sf~N_!llil_Gru;es !JW.Yal
• _1,226.1081-
Pre-c!J'L~.PLQ;;_e.Q_Y.rn~,
• 1926.1082- Procedures during dive.
•
l2.2ti.J.O.f!.l~..P.9§t::.dh@_Qrocedures._
• 12.-U1J.O.H:2Clli!A_Q!Ying_,
• 1926.1085- Surface-supplied air diving.
•
,t926.tO!L6_~..r::u~ed:aQ_~ill\1na,
• 1926._1087- Liveboatinq.
• 1926.1090- Equipment.
• 12f.Q,_1091 - RewrQJsg_~;mJ.og_r_~_uiremen~
• 1926 Subpart Y App A - Examples of Conditions Which May Restrict or Umit Exposure to Hyperbaric Conditions
• 12.26 S.YP.P..e.tLY._&;mJ}_:_~yjQ_elio.gsJgr..sbtllilllfk;__Qjy_lng
• l~.?J?_Subpart z- TQlQ£.9.0.9J:!f!~.rQQ!!~S!.I..b~[l..£~~
• 1926.1100- fReservedl
• 1926.1101- Asbestos
• l92Q,JJQ1~P1l.A.:...QSJ::!8_R~f.erl"i:D.~!i:...M.~~-=-M.9llil_q!,Q_ry
• 1926.1101 App 8- Samplinq_oo_d. Ana!vsis- Non-mandatorv
• .:t9..f6.110J...82.PS_:._Qyglit9.tlY.!Lqm;L@antit:Q.Q\Il"i:Jlt..tg§!:in..a.PJoce.dure$...-__Man@!:9J.Y.
•
l.92.6J.J.Q.l_!'{lp~R-: . !.'1!%!le&l..Q..!J.e.~nnaire.s.;...JJJ9JJ.d.?.torY.
• 1926 1101 App F- Interoretation and classification of chest roentaenoorams- mandatory
• l22.G.. _UQ.lfuJ...P.S..:_V\LorKPJ.2..C..ti!;;e.s._and enQi.o.s:eriog_!;;QJJ.tr..9Js..f9.LCla~L~be_stos~O..®Ii!ti.Q.Il$..:..!lQO.:man_d_qt.Q!Y
• l229.JJ.Qt.illw..G....::JReser.V§Ql
• 1926.1101 ADD H- St1bstance Technicpl Information for Asbestns- Non-Mandatory
•
J..9~.\iJJ..Qt.Ap_p_l..:_!.'1edi.~.ls.Y.IY.e!!lgn~_g\.!iQelin.~.foL9.S.b.e~~-JJ.m:.!Tl..£Odatory
• 1926.1101 Aoo J- Smoking cessation prooram information for asbestos non-manda!Q!y
• 1926.1101 Apo K- Polarized light Microscopy of Asbestos- Non-Mandatorv
• .1.926,H02 ..:-_CQQ.LiP.LP.1t<;;b_yg@Ji~1n..t§ro.re.t9ti9.0. . Qf_rerm.
• 1926.1103- 13 Carcinooens
<4-Nitrobiphenyl,~~
• 12.:?..§J.!0:1..:.ID.Rha-!':!QQb_t!1\!l?.mlog~
• .192_QJJQ.5_.:JRe.s.ervedJ
• 1926.1106 Methyl chlommethyl ether.
• l9.2Q.J.J07 -~:bl.E.bJQr.Q.b.e:o~Q.lne
(.alliL!ts_saJtsl.,
• 1926.1108- bis-Ch!orometlwl ether.
• 1926.1109- beta-Naphthylamine.
•
~f§JJ.!Q__-_ Bergidin_~,
• 1926.1111- 4-Amin~
• 1926.1112- Ethylenf!imine.
• .!2.2.fiJJ,l;l_7.J;t?.t9.:PLQR.iQ!~JpJJ.e,
• 1926.1114- 2-Acetvlaminofluorene.
• 1926.Ut5_-_1:Qlme1D.Y!?.mJn9alo..Ren~D!l,
• J926..lU!L:..N:.Ni!:.rn.SQ!:IimethyJp_rnJ.!J.e.,
• 12.26.1Ul..~ Vinyl chloride.
• l9..f.6...1t llL:..J.I19I9!!oi~;.._q.rsenlc..
• 1926.1126- Chromium <VI>
• 1926.1127- cadmium
•
l~!.2§JJ~.?.. AI:!.P_A:::....S.Y_b.§t9_n.r;.e_.2.g.fg_!;y_Q_<!!Q_Shee.t.:....Q!~tm!lln1
• 1926.1127 App 8- Su~nce Technical Guidelines for cadmium
• l22JiJ1.2.2.l'.P..Q..C..7•. Q!.@I.i!Q.t"IY~.QIJ.\:!..Qi,!.f!_Qlj.tg.t.i.Y.~.f.lt Tes;D.ng Pr~J!.Y:Lfi:.S
7 of9
10/25/2013 4:57PM
Safety and Health Regulations for Construction
https ://www.osha.gov/pls/oshaweb/owastand.display_standard_grou...
• 1926 1127 App D- Occuoational Health Historv Interview With Reference to cadmium Exposure
• l~£6.Jl2l__&m__);._:._QI_Q.m.(l,lJILin WorkJ!@~-~.tm!:?§P..t!§I.e.~
• l9.t. QJJ.f21\_p_Q_£__:.1!.9~8.tm:m.d.g.!;Qry ..E'!:9!®J'or~lQlw.i.c.aLf1.9!li!P..rio9
• 1926.1128- Benzene.
• l9..~JJ29 - Coke~OJ~_!Il§<;ions.
• 1926.1144- 1 2-dibromo-3-chloropropane.
• 1926.1145- Acrvlonitrile.
•
J~_Q,_l:t1?.:J.;1bY.Iene
0..2\Lc!.e:
• 1926.1148- Formaldehyde.
• 1926.1152- Methylene Chloride.
•
19..4§_S_y_QQ_grt]:__8Qp__8__.:_.Q_~jg.(lg!;iQO.~-J9L~MraltQQustr.y_S.!flndards.Jnc.Q!:'QQrate_QJnt.Q.!k;!r;ly_.QLQJnstmction_.Standards
• 1926 Suboart AA - rReservedl
• 1926 Subpart BB - [Reservedl
• 1926 Subpart CC- Cranes & Derricks in Construction
•
J~l.fi ...H.Q.Q __:..S_cgpg,_
• 1926.1..1QL~... .R~flnttLo_o_s_,_
• 1926.1402 - Ground cQ!lQit~
• J9.f.R'"l40_1_:_~.m!2!Yf_Dj_~.S.s:eJ:rtl>Jy"~:se!~.tiQD...9Lr:!lC!DUF.~tt.t!.!.f.eLQL.e!DPJQy_er_p~.Y.t.:ell,
• 1926.1404- Assembly!Disassembly--qeneral requirements <aool!es to all assembly and disassembly operations).
• 1926.1405- Disassembly--additional reauirements for dismantling of booms and jibs Capplies to both the use of manufacturer procedures and employer
procedures)
• 1926A.1Q§..: . .~JDPJv/.Q.isa~JI1_bJv:::OOJQ!Q'f-:..LPI!X:.ectures~.::g~oe.!J!!.Ig_qyJr.e_ore.fl~,
• 1926.1407- Power line safetv Cup to 350 kVl--assembly and disassem.Jlli,.
•
!.$l.l.QA~_:_f'Qw~r-.lin~. . ll?.f.e.!Y_.(yp_to_~c5_QLV1=-~l!iP.J1.l~f1tQQ..e.@tiom;,
• l.2.2.6.,1®_9_:__E'm:i~et.JlD~-~-f.e.ty...(.qyer 350__!00,
• 1926.1410- Power line safetv fall voltageS)--eauioment ooerationscloser than the Table A zone
• J.il.~11.:_PR!N.e.r.JiJ:le....~.ffi_W.~:.\IL~_t;rgYeJLIJQ..Un.@r_Q[__n_e9.LQID'i..El!..!!!J.!!S..wi.tb..nQ....lQQQ,
• 1926 BJJ:. . .~J.ruiPJ~.ctkln.s,_
• 1926.1413- Wire rope~-inspection.
• _1926._1414- .Wir.e..lQQ.e.::.se.lection aa.QJD.£;QJ!Q.tiQD...QJ.~ri!.!·
• 1926.1415 Safetv devices.
• 1926.1416- Operatio~
• !2.f.6.,.HlL:..Qp_g_@!!g.!J,
• 1926.1418- Authority to stop operation.
• 19.1lU...1!2..:......~.ign§l_s-_:g~ule.rQLreg!!ifemeo~,
• 192Q,_HZQ.:...Sl9.o.ill~...:.ll!dlQ._~fep.!:LQ.l}g_9J...Q.ttJ.er..eJ.e.d:!1llliC_tr9.ns....m.L~s.iQ.!J_.Qf...§igD9.!s,
• 1926.1421- Signals--voice signals--additional requirements.
• l9_2...6Aill_.:...SJgflJIJs.::.b.g.mLsia.naliba.rt
• 1926.1423- Fall orotection.
• 1926.1424- Work area controL
•
1922,_Hf.Q._~_.!S@~egr._of
the loaj:l_,
• 1926.1426-- Free fall and controlled load lowering.
• 1926.1427 Operntor qualification and certification.
• J2f.B. Jd.~/l:...Siqnal o_erso_.!]_q_~E~.lificatigJl(!.,
• 1222:.1429 - Qualifications of maintenance & reoair employees.
• J..9~J:i.143!J.:.J!pJoi.o9.,.
• 1.9~.Q..J1J.L-_t!Qi.sP....og__pe.tSQDJJ!:::!.,
• 1926.1432- Multiple-cranefderrick lifts--supplemental reauirement:s.
• l9Z§.J...4.U..:.J2e.;;jg!1,.J:_QD.S!:r.YC.tion and t§~[og,
• 1926.1434- Equipment modifications.
• 1926.1435- Tower crnnes.
• .12.f.!?.J.~]§_:...Derric~llc
• 1926.1437 - Floating cranes/derricks and land cranes/derricks oo baraes.
• 1926.113_!1_~-Qy~b.§!.Q ..'k.9~illr'LGI.?.f!g_~.
• .19.~115L:..!leQicated .Pi.le..fJ..dY"ers,
8 of9
10/25/2013 4:57PM
https://www.osha.gov/pls/oshaweb/owasrch.search_ form?p _doc_ty...
Regulations (Standards- 29 CFR)
!Hill
A to Z Index
OSHA
:l!~HA
uickTakes Newsletter
I En espaiiol I Contact Us I FAQs I About OSHA
i2]RSSFeeds
E!IPrlntThisPage
1:11
IJTextS!ze
What's New 1 Offices
Dat3 & Statistics
Enforcement
Regulations (Standards - 29 CFR)
Construction
General Industry
•
Maritime
Agriculture
Recordkeeping
State Plans
All
PARIM_£(QC__e!J.J.!.reSJmJhJi_liandJLn_g_QL8et9Ji;;~jjQn_QmwJgJo.tsllill!gr_~de.raL~mp_!Qyee_Protoctkm_Sta_tu_tes
• PART _ZQ._pj_Q!;l_u_gjQ[LQrJ)l~!lf.iUnLQfJ!lfQJJD.i;l_tlQD_QI..f~lamdQ]S
• PART 70AJ~m_lection .QfJ!lO_iYJQ_y_alfriY.Qcy_io___8ecorQ_s
• PART_lLProff;~!tOJ.l.Q.f.lDJ;Jjy.ld!mJJ~ri.Yil<;;Y._ and_~J~~-tg_Re_~Qf.ds_!I_IJ!EfJ!JJ:..PJiva~yA!;_tgfJ.97_1
• PART :!..2.0.9_B§.setv§Q
• PAIITJ._901 Pr_OCedl!Lf!S_(Q[_SlateAgreeme.nts
• EA!IT_l902
StQte,_!:!PJ!SJQ[!l:!_e__Qey.e!Qp_meot.9_od_.Eil_fu[_c_e_rneot_Qf_$~_5!!;!_!ld_;;~JQ_::;
• PART t903.JJISJleQ:!QI1S....C\tatlO.IJ.~_.and .. /?.CQ.RQ&d. .. P.i:.O.i'IJ.tiJ.~_!;i
• Et\RT 19..0..4..Re~ordlog_g_ll0_!@..9.!1illii..QI:J:1llli!liD.fl_ctLl..tUIJrle:~ao.QJ!!n.Elli
• PART 1905 Rules of lj"actihe.
•
•
•
•
•
•
•
•
•
•
•
•
•
•
••
i
i
PART 1922 Investigational Hearings under Sedion 41 of the Wngshoremen's and Harbor Workers' Comoensation Act
PART 19~nQams.ARP.lic.a..bJe..to.JlllQJ:K5.1)Qp.s...arntB...e.®JJ.J'.acum
PARl_1925 SP.f!.illf._a.OJ:t.l:!.e.Q.ttb...S!£!.o.da.ro.~..{Qr.£00.~Ii:!LS..e.r.v.lr;f!..CQn.tr~.cts
PART l9.lQ..Sgf§W.l!.DJ:!J:.!§!l:b...&eQ.u.lf!.ti9lli.f.QLQ}D.S!:f.!.J&t!Qll
i
i
(STAAl As Amended
• PART 1979 Procedures for the Handling of Discrimination Complaints Under Section 519 of the Wendell H. Ford Aviation Investment and Reform Act for the 21ST
Centurv
• PART 1980 Erocedures for the Handling of Discrimination Complaints Under Section 806 Of the Corporate and Crjmjnal Fraud AcCO!mtahjlitv Act of 2002 Title VIII of the
Sarbanes-Oxley k.t of 2002
• PART 1981 Procedures for the Handling of Discrimination Complaints Under Segjon 6 of The Pipeline Safety Improvement Act of 2002
• PART 1982 Procedures for the Handling of Retaliation Complaints Under the National Transit Systems Security Act of 2007 Enacted as Section 1413 of the Imolementina
Recommendations of the 9/11 Commission Act of 2007 and The Federal Railroad Safety Act as Amended by Section 1521 of the Implementing Recommendations of the
9/11 Commission Act of 2.00Z
• PART l983~.fQ.t . tb.e.H.anciJi.oo..of..Re.talia.ti.ruLCOmo.!!'lio....ts Un_Qgr_S~J:.iQo..2.19_9f...It&.CODS!J.rner.ErOOJ.Kt.5.af.el.V_ImR.tQ.Il!ill!filltAc;.t..Qf....2008
• PART 19B.1.£r..ocedures fQr..tbe_liandiiD.9...Qf_.B.~ta!iatioo_CP...D1.J!.@ints Under_~J;io.n.lSiiLQf.t!J&.hffQt.Qa_l;l.!e_Q!re...Act
• P-ART 1986 Procedures for .the: Handling_of ~IQliatio.n_Crn!pJQjo_f:l1_l)_r:i_!:@.L!.l]e Erup!Q~YJ{l_tec_tiQ[l_F_rQY]~Qfl_Qlt!Je Seaman's Protection Act <SPA>,_gs..Am.e!J.d.e!t.
• PART 1990_kJJ.!:Il~fiW!tiQ!1._Qg_g;.[j&g!;]Ql)_,_j!_IJQ...B.JillYJ..a.J;iQD_Qf. car_cingge.n~
• PART_UQ_Q_QSHA Relliew_Q>mmjs;;.iQIJ
• ~BI.ll.Ql...ReQJ,l.JaJ:jqns Implem..w..tin.g.Ih.tLF.re.edom.QU!lfur.m.<~t.lo_n_8ht,
• P.ARI.22_02 Rut~__of Et!:li.<::.l?..9.Dd._{:.Q.!ld.!JI;t9.f... &l~ie!N.. C.Qill!!l.ls.liiQ.Il.f.IDJliQ~
•
P..8BI..~..Q.3 Regu!a!:ions_!.mP.!~!!l~.OJJ.r.l9.I!:u-t.GQY.eJ.om.e.oUIL.!:b_e._S!.lllS.bi.o.e_Jk!
• PART 2204 I.rnpJ.em.entati.Q!l.Qf_.t!JSLf_Q!Ji!l.Ac.'-e~..tQ.J!J~ti!;.e..k.t
• PART 22Q5.J.;.ofQrt;;ement o[J'ID.Ddiscriminatlon on_tb!LI&sis of Ha_®.k!:!Q..in PrQQ.IT;!Imill.~tivities CQod.!J.c.teO....b.~ tht; Q:cupational Safet'i..a.!JQ..Iie9!th_Re.vle..~CQmmission
• .P.AB.I.2400 ~g_ulatiQD.S.l.rno!.ementlo.q_.t!J.e..&M!.cy._.lj~;t
Freedom of Information Act 1 Privacy & Security Statement 1 Disclaimers 1 Important Web Site Notices 1 International
I
Contact Us
U.S. Department of Labor I Occupational Safety & Health Administration 1 200 Constitution Ave., NW, Washington, DC 20210
Telephone: 800-321-0SHA (6742) I TTY: 877-889-5627
www.OSHA.gov
I of I
10/25/2013 4:58PM
Scope, appP.cation, and definitions applicable to this subpart - 1926.650 https://www.osha.gov/pls/oshaweb/owadisp.show_docmnent?p_tabL,
A to Z Index
OSHA
E).iiJii•mt;\'itil'mNews!etter l;,l"iRSSFeeds
Qccullilti~nal
Home
I En espaiiol I Contact Us ) FAQs I About OSHA
a-Print This Page
Safety & Health Administrati_o_:_n_ : ..........w.e~~~ }lelp
Workers
Regulations
Enforcement
Data & Statistics
fl
DText Size
What's New [Offices
T!aining
I.tJ Regulations <Standards - 29 CFRl - Table of Contents
io Part Number:
1926
.
·-----·-------------·-----~--------------------------------------·--------
!•
Part Title:
i• Subpart:
i o Subpart Title:
j• Standard Number:.
1• Title:
Safety and Health Regulations for Construction
p
Excavations
1926.650
Scope, application, and definitions applicable to this subpart.
!1926.6SO(a)
IScope and application. This subpart applies to all open excavations made in the earth's surface. Excavations are·defined to include trenches.
i
: 1926.650lbl
)Definitions applicable to this subpart.
I"Accepted engineering practices" means those requirements which are compatit:lle with standards of practice required by a registered
jprofessional engineer.
!"Aluminum Hydraulic Shoring" means a pre-engineered shoring system comprised of aluminum hydraulic cylinders (crossbraces) used in
!conjunction with vertical rails (uprights) or horizontal rails (wales). such system is designed specifically to support the sidewalls of an
)excavation and prevent cave-ins.
i''Bell-bottom pier hole" means a type of shaft or footing excavation, the bottom of which is made larger than the cross section above to form a
f belled shape.
I
"Benching {Benching system)" means a method of protecting employees from cave-ins by excavating the sides of an excavation to form one or
(a series of horizontal levels or steps, usually with vertical or near-vertical surfaces between levels.
) "cave-in" means the separation of a mass of soil or rock material frOm the side of an excavation, or the Joss of soil from under a trench shield
!or support system, and its sudden movement into the excavation, either by falling or sflding, in sufficient quantity so that it could entrap, bury,
!or other wise .injure and immobilize a person.
I"Competent person" means one who is capable of identifying existing and predictable hazards in the surroundings, or working conditions
!which are unsanitary, hazardous, or dangerous to employees, and who has authorization to take prompt corrective measUres to eliminate
(them.
I"Cross braces" mean the horizontal members of a shoring system installed perpendicular to the sides of the excavation, the ends of which bear
!against either uprights or wales.
j "Excavation" means any man-made cut, cavity, trench, or depression in an earth surface, formed by earth removal.
'
!"Faces" or "sides" means the vertical or inclined earth surfaces formed as a result of excavation work.
; "Failure" means the breakage, displacement, or permanent deformation of a structural member or connection so as to reduce its structural
!integrity and its supportive capabilities.
!"Hazardous atmosphere" means an atmosphere which by reason of being explosive, flammable, poisonous, corroSive, oxidizing, irritating,
!oxygen deficient, toxic, or otherwise harmful, may cause death, illness, or injury.
i"Kickout'' means the accidental release or failure of a cross brace.
!"Protective system" means a method of protecting employees from cave-ins, from material that could fall or roll from an excavation face or into
ian excavation, or from the collapse of adjacent structures. Protective systems include support systems, sloping and benching systems, shield
!systems, and other systems that provide the necessary protection.
["Ramp" means an inclined walking or working surface that is used to gain access to one point from another, and Is constructed from earth or
ifrom structural materials such as steel or wood.
\"Registered Professional Engineer'' means a person who ·Is registered as a professional engineer in the state where the work is to be
to be a "registered professional engineer" within the meaning
of this standard when approving designs for "manufactured protective systems" or "tabulated data" to be used in interstate commerce.
!performed. However, a professional engineer, registered in any state is deemed
!
!'"Sheeting" means the members of a shoring system that retain the earth in position and in turn are supported by other members of the
ishoring system.
i ''Shield (Shield system)" means a structure that is able to withstand the forces imposed on
it by a cave-in and thereby protect employees
\within the structure. Sh'1elds can be permanent structures or can· be designed to be portable and moved along as work progresses.
!Additionally, shields can be either premanufactured or job-built in accordance with 1926.652(c)(3) or (c)(4). Shields used in trenches are
usually referred to as "trench boxes" or "trench shields."
!
j "Shoring (Shoring system)" means a structure s~ch as a metal hydraulic, mechanical or timber shoring system that supports the sides of an
!excavation and which is designed to prevent cave-ins.
i"Sides". See "Faces."
I of2
10/25/2013 5:01PM
Mope, appLication, and definitions applicable to this subpart.- 1926.650 https://www.osha.gov/pls/oshaweb/owadisp.show_docurnent?p_tabl...
!
) "Sloping (Sloping system)" means a methOO of protecting employees from cave-ins by excavating to form sides of an excavation that are
!inclined away from the excavation so as to prevent cave-ins. The angle of incline required to prevent a cave-in varies with differences in such
!factors as the soil type, environmental conditions of exposure, and application of surcharge loads.
I"Stable rock" means natural solid mineral material that can be excavated with vertical sides and will remain intact while exposed. Unstable rock
)is considered to be stable when the rock material on the side or sides of the excavation is secured against caving-in or movement by rock bolts
ior by another protective system tliat has been designed by a registered professional engineer.
i"Structural ramp" means a ramp built of steel or wood, usually used for vehicle access. Ramps made of soil or rock are not considered
j structural ramps.
!"Support system" means a structure such as underpinning, bracing, or shoring, which provides support to an adjacent structure,
iunderground installation, or the sides of-an excavation.
I''Tabulated data" means tables and charts approved by a registered professional engineer and used to design and construct a protective
;svstem.
i''Trench (Trench excavation)" means a narrow excavation (in relation to its length) made below the surface of the ground. In general, the
!depth is greater than the width, but the width of a trench (measured at the bottom) is not greater than 15 feet (4.6 m). If forms or other
i structures are installed or constructed in an excavation so as to reduce the dimension measured from the forms or structure to the side of the
)excavation to 15· feet (4.6 m) qr less (measured at the bottom of the excavation), the excavation is also considered to be a trench.
'
!''Trench box." See "Shield.
!i ''Trench shield." See "Shield."
;
i' "Uprights" means the vertical members of a trench shoring
system placed in contact with the earth and usually positioned so that individual
!members do not contact each other. Uprights placed so that individual members are closely spaced, in contact with or interconnected to each
'other, are often called "sheeting."
i.
j "Wales" means horizontal members of a shoring system placed parallel to the excavation face whose sides bear against the vertical members
J
of the shoring system or earth.
IfJ-
Next Stilndard {1926.651)
Regulations <Standards - 29 CER) - Tqhle of Contents
I
U.S. Department of Labor 1 Occupational Safety & Health Administration 1 200 Constitution Ave., NW, washington, DC 20210
Telephone: 800-321-0SHA (6742) I TIY: 877-889-5627
www.OSHA.gov
2 of2
10/25/2013 5:01PM
Restatement (Second) of Torts§ 414 (1965)
Restatement of the Law- Torts
Database updated October 2013
Restatement (Second) of Torts
Division 2. Negligence
Chapter 15. Liability of an Employer of
an Independent Contractor
Topic I. Harm Caused by Fault of Employers oflndependent Contractors
§ 414 Negligence in Exercising Control Retained by Employer
Comment:
Reporter's Notes
Case Citations - by Jurisdiction
One who entrusts work to an independent contractor, but who retains the control of any
part of the work, is subject to liability for physical harm to others for whose safety the
employer owes a duty to exercise reasonable care, which is caused by his failure to exercise
his control with reasonable care.
See Reporter's Notes.
Comment:
a. If the employer of an independent contractor retains control over the operative detail of
doing any part of the work, he is subject to liability for the negligence of the employees of the
contractor engaged therein, under the rules ofthat part of the law of Agency which deals with the
relation of master and servant. The employer may, however, retain a control less than that which
is necessary to subject him to liability as master. He may retain only the power to direct the order
in which the work shall be done, or to forbid its being done in a manner likely to be dangerous to
himself or others. Such a supervisory control may not subject him to liability under the principles
of Agency, but he may be liable under the rule stated in this Section unless he exercises his
supervisory control with reasonable care so as to prevent the work which he has ordered to be
done from causing injury to others.
b. The rule stated in this Section is usually, though not exclusively, applicable when a
principal contractor entrusts a part of the work to subcontractors, but himself or through a
foreman superintends the entire job. In such a situation, the principal contractor is subject to
liability if he fails to prevent the subcontractors from doing even the details of the work in a way
unreasonably dangerous to others, if he knows or by the exercise of reasonable care should know
that the subcontractors' work is being so done, and has the opportunity to prevent it by exercising
the power of control which he has retained in himself. So too, he is subject to liability if he
knows or should know that the subcontractors have carelessly done their work in such a way as
to create a dangerous condition, and fails to exercise reasonable care either to remedy it himself
or by the exercise of his control cause the subcontractor to do so.
c. In order for the rule stated in this Section to apply, the employer must have retained at least
some degree of control over the manner in which the work is done. It is not enough that he has
merely a general right to order the work stopped or resumed, to inspect its progress or to receive
reports, to make suggestions or recommendations which need not necessarily be followed, or to
prescribe alterations and deviations. Such a general right is usually reserved to employers, but it
does not mean that the contractor is controlled as to his methods of work, or as to operative
detail. There must be such a retention of a right of supervision that the contractor is not entirely
free to do the work in his own way.
§ 343A Known or Obvious Dangers
(1) A possessor of land is not liable to his invitees for physical harm caused to them by any
activity or condition on the land whose danger is known or obvious to them, unless the
possessor should anticipate the harm despite such knowledge or obviousness.
(2) In determining whether the possessor should anticipate harm from a known or obvious
danger, the fact that the invitee is entitled to make use of public land, or of the facilities of a
public utility, is a factor of importance indicating that the harm should be anticipated.
Comment on Subsection (1):
a. The rule stated in this Subsection applies to all persons who enter or remain on land in the
capacity of invitees, as defined in § 332. It includes in particular the patrons of a public utility
who enter land in its possession seeking its services, to which as members of the public they are
entitled; and it includes members of the public making use of the land of the government or a
government agency which is held open for the use of the public. As is stated in Subsection (2),
such a public utility, govermnent, or government agency may have special reason to anticipate
that one who so enters will proceed to encounter known or obvious dangers; and such a
defendant may therefore be subject to liability in some cases where the ordinary possessor of
land would not.
b. The word "known" denotes not only knowledge of the existence of the condition or
activity itself, but also appreciation of the danger it involves. Thus the condition or activity must
not only be known to exist, but it must also be recognized that it is dangerous, and the probability
and gravity of the threatened harm must be appreciated. "Obvious" means that both the condition
and the risk are apparent to and would be recognized by a reasonable man, in the position ofthe
visitor, exercising ordinary perception, intelligence, and judgment.
c. The possessor's activities may involve a risk which is known or obvious to those who enter
his land, either because the risk is inherent in the nature of the activity itself, or because they are
aware that it is carried on in a manner which involves risks that are not necessarily inherent in
such activities.
d. A statute may require the possessor of land to keep it, or anything upon it, in a condition
safe for invitees, or even for licensees, or to take particular precautions for the safety of such
visitors. If so, the fact that the visitor knows that the possessor has not complied with the
requirements of the statute does not prevent the possessor from being subject to liability for his
breach of his statutory duty. Such knowledge of the violation is material only in determining
whether the visitor is to be charged with contributory negligence, or assumption of risk, in
coming in contact with the dangerous condition. As to this, see § 288B and Comment b to that
Section; also §§ 496A- 496G.
e. In the ordinary case, an invitee who enters land is entitled to nothing more than knowledge
of the conditions and dangers he will encounter if he comes. If he knows the actual conditions,
and the activities carried on, and the dangers involved in either, he is free to make an intelligent
choice as to whether the advantage to be gained is sufficient to justifY him in incurring the risk
by entering or remaining on the land. The possessor of the land may reasonably assume that he
will protect himself by the exercise of ordinary care, or that he will voluntarily assume the risk of
harm if he does not succeed in doing so. Reasonable care on the part of the possessor therefore
does not ordinarily require precautions, or even warning, against dangers which are known to the
visitor, or so obvious to him that he may be expected to discover them.
Illustration:
1. The A Company has in its store a large front door, made of heavy plate glass. The door is well
lighted and plainly visible, and its existence is obvious to any person exercising ordinary
attention and perception. B, a customer in the store, while preoccupied with his own thoughts,
mistakes the glass for an open doorway, and runs his head against it and is injured. A Company
is not liable to B.
f There are, however, cases in which the possessor of land can and should anticipate that the
dangerous condition will cause physical harm to the invitee notwithstanding its known or
obvious danger. In such cases the possessor is not relieved of the duty of reasonable care which
he owes to the invitee for his protection. This duty may require him to warn the invitee, or to
take other reasonable steps to protect him, against the known or obvious condition or activity, if
the possessor has reason to expect that the invitee will nevertheless suffer physical harm.
Such reason to expect harm to the visitor from known or obvious dangers may arise, for
example, where the possessor has reason to expect that the invitee's attention may be distracted,
so that he will not discover what is obvious, or will forget what he has discovered, or fail to
protect himself against it. Such reason may also arise where the possessor has reason to expect
that the invitee will proceed to encounter the known or obvious danger because to a reasonable
man in his position the advantages of doing so would outweigh the apparent risk. In such cases
the fact that the danger is known, or is obvious, is important in determining whether the invitee is
to be charged with contributory negligence, or assumption of risk. (See§§ 466 and 496D.) It is
not, however, conclusive in determining the duty of the possessor, or whether he has acted
reasonably under the circumstances.
Illustrations:
2. The A Department Store has a weighing scale protruding into one of its aisles, which is visible
and quite obvious to anyone who looks. Behind and about the scale it displays goods to attract
customers. B, a customer, passing through the aisle, is intent on looking at the displayed goods.
B does not discover the scale, stumbles over it, and is injured. A is subject to liability to B.
3. The A Drug Store has a soda fountain on a platform raised six inches above the floor. The
condition is visible and quite obvious. B, a customer, discovers the condition when she ascends
the platform and sits down on a stool to buy some ice cream. When she has finished, she forgets
the condition, misses her step, falls, and is injured. If it is found that this could reasonably be
anticipated by A, A is subject to liability to B.
4. Through the negligence of A Grocery Store a fallen rainspout is permitted to lie across a
footpath alongside the store, which is used by customers as an exit. B, a customer, leaves the
store with her arms full of bundles which obstruct her vision, and does not see the spout. She
trips over it, and is injured. If it is found that A should reasonably have anticipated this, A is
subject to liability to B.
5. A owns an office building, in which he rents an office for business purposes to B. The only
approach to the office is over a slippery waxed stairway, whose condition is visible and quite
obvious. C, employed by B in the office, uses the stairway on her way to work, slips on it, and is
injured. Her only alternative to taking the risk was to forgo her employment. A is subject to
liability to C.
Comment on Subsection (2):
g. In determining whether the possessor of land should expect harm to invitees
notwithstanding the known or obvious character of the danger, the fact that premises have been
held open to the visitor, and that he has been invited to use them, is always a factor to be
considered, as offering some assurance to the invitee that the place has been prepared for his
reception, and that reasonable care has been used to make it safe. There is, however, a special
reason for the possessor to anticipate harm where the possessor is a public utility, which has
undertaken to render services to members of the public, so that they are entitled to demand the
use of its facilities, and to expect reasonable safety while using them. The same is true of the
government, or a government agency, which maintains land upon which the public are invited
and entitled to enter as a matter of public right. Such defendants may reasonably expect the
public, in the course of the entry and use to which they are entitled, to proceed to encounter some
known or obvious dangers which are not unduly extreme, rather than to forego the right.
Even such defendants, however, may reasonably assume that members of the public will not
be harmed by known or obvious dangers which are not extreme, and which any reasonable
person exercising ordinary attention, perception, and intelligence could be expected to avoid.
This is true particularly where a reasonable alternative way is open to the visitor, known or
obvious to him, and safe.
Illustrations::
6. An incoming train of the A Railroad deposits B, a passenger, upon a platform from which the
only exit is over a footbridge crossing the tracks. Employees of the Railroad have encumbered
the bridge with baggage from the train. B, crossing the bridge, attempts to climb over the pile of
baggage, falls, and is injured. A Railroad is subject to liability to B.
7. The same facts as in Illustration 6, except that B is told by the train conductor that he may
safely walk across the tracks. A Railroad is not liable to B.
8. The only convenient approach from the east to the station of A Railroad is over a footbridge
which, through the negligence ofthe Railroad, is covered with snow and ice. The condition of
the bridge is obviously dangerous, but not extremely so. The only other approach to the station,
from the west, would require a detour of six blocks. B, a prospective passenger coming from the
west, attempts to use the bridge rather than detour, and slips and is injured. A Railroad is subject
to liability to B.
9. The A Steamship Company is engaged in unloading a passenger ship. Its pier is encumbered
with trunks, baggage trucks, and many other large visible objects, but there is ample room for
passage between them. B, a passenger leaving the ship, is preoccupied with her own thoughts,
and stumbles over a trunk and is injured. The A Company is not liable to B.
55.01
Construction Negligence--Work Entrusted To Another
A[ n] [owner] [contractor] [other] who entrusts work to a [subcontractor] [contractor]
[other] can be liable for injuries resulting from the work if the [owner] [contractor] [other]
retained some control over the safety of the work and the injuries were proximately caused by the
[owner's] [contractor's] [other's] failure to exercise that control with ordinary care.
Notes on Use
This should be given as an introduction to the subject of construction negligence.
Comment
See Restatement (Second) of Torts, §414 (West 2000), and the Introduction to this section.
Section 55,
Page 6 of 9
55.02 Construction Negligence--Duty
A party who retained some control over the safety of the work has a duty to exercise that
control with ordinary care.
Notes on Use
This should be used in conjunction with lPl 55.03.
Comment
(Cf Restatement (Second) of Torts, §414: "one who entrusts work to an independent contractor,
but who retains the control of any part of the work, is subject to liability for physical harm to others for
whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to
exercise his control with reasonable care.")
Section 55,
Page 7 of 9
55.03 Construction Negligence--Issues Made by the Pleadings/Burden of Proof
Plaintiff __ seeks to recover damages from defendant[s] __ . In order to recover
damages, the plaintiff has the burden of proving:
I. [The defendant] [Defendants_, _, and _] retained some control over the safety of
the work;
2. Defendant[s] [acted] [or] [failed to act] in one or more of the following ways:
a. _ _ ;or
b. - - -; or
c. - -.,
and in so [acting] [or] [failing to act], was [were] negligent in the manner in which it [exercised]
[or] [failed to exercise] its control.
3. Plaintiff[name] was injured; and
4. [The defendant's] [Defendants' __, __, or ___] negligence was a proximate
cause of plaintiffs injuries.
[You are to consider these propositions as to each defendant separately.] If you find that
any of these propositions has not been proven as to [the defendant] [any one] [or more] [or all]
[of the defendants], then your verdict should be for [the] [that] [those] defendant[s]. On the other
hand, if you find that all of these propositions have been proven as to [the defendant] [any one]
[or more] [or all] [of the defendants], then you must consider defendant['s] [s'] claim[s] that the
plaintiff was contributorily negligent.
As to [that] [those] claim[s], defendant[s] has the burden of proving:
A. Plaintiff [name] acted or failed to act in one or more of the following ways:
1.
; or
2. __;or
3. __.,
and in so [acting] [or] [failing to act] was negligent, and
B. Plaintiffs negligence was a proximate cause of [his injury] [and] [damage to his
property].
If you find that plaintiff has proven all the propositions required of [him] [her], and the
defendant[s] ha[s][ve] not proven all of the propositions required of the defendant[s], then your
verdict should be for the plaintiff as to [that] [those] defendant[s] and you will not reduce
Section 55,
Page 8 of 9
plaintiff's damages.
If you find that defendant[s] [has] [have] proven all of the propositions required of [the]
[those] defendant[ s], and if you find that the plaintiff's contributory negligence was greater than
50% of the total proximate cause of the injury or damage for which recovery is sought, then your
verdict should be for [that] [those] defendant[s].
If you find that defendant[s] [has] [have] proven all of the propositions required of [the]
[those] defendant[s], and if you find that the plaintiff's contributory negligence was less than 50%
of the total proximate cause of the injury or damage for which recovery is sought, then your
verdict should be for the plaintiff as to [that] [those] defendant[ s] and you will reduce the
plaintiff's damages in the manner stated to you in these instructions.
Notes on Use
This is a new instruction. In prior editions of the !PI, there were no specific instructions dealing
with common law construction negligence cases. Most cases that could have been tried under that theory
were typically tried as Structural Work Act cases. Cf !PI 180.01 et seq. (!PI 2000 ed).
This combined issue-burden instruction is designed for use in a common law construction
negligence case. The committee drew heavily on Restatement (Second) of Torts, §414, and Illinois cases
construing it. E.g. Larson v. Commonwealth Edison Co., 33 Ill.2d 316,21 I N.E.2d 247 (1965); Weber v.
Northern Ill. Gas Co., I0 III.App.3d 625, 295 N.E.2d 41 (1st Dist.1973); Pasko v. Commonwealth Edison
Co., 14 III.App.3d 481, 302 N.E.2d 642 (1st Dist.l973); Ryan v. Mobil Oil Co., !57 Ill.App.3d 1069, 510
N.E.2d 1162, 110 Ill. Dec. 131 (I st Dist.1987); Haberer v. Village ofSauget, !58 III.App.3d 313, 511
N.E.2d 805, 110 Ill.Dec. 628 (5th Dist.1987); Claudy v. City ofSycamore, 170 Ill.App.3d 990, 524
N.E.2d 994, 120 Ill.Dec. 812 (1st Dist.1988); Bezan v. Chrysler Motors Corporation, 263 Ill.App.3d 858,
636 N.E.2d 1079,201 Ill. Dec. 647 (2d Dist.1994); Fris v. Personal Products Company, 255 III.App.3d
916, 627 N.E.2d 1265, 194 Ill.Dec. 623 (3d Dist.1996); Fancher v. Central Illinois Public Service Co.,
279 Ill.App.3d 530, 664 N.E.2d 692, 216 II !.Dec. 55 (5th Dist.1996); Rangel v. Brookhaven
Constructors, Inc., 307 Ill.App.3d 835, 719 N.E.2d 174, 241 Ill.Dec. 313 (1st Dist.1999); Brooks v.
Midwest Grain Prod of Ill., 311 Ill.App.3d 871, 726 N.E.2d !53, 244 Ill.Dec. 557 (3d Dist.2000); Bokodi
v. Foster Wheeler Robbins, Inc., 312 Ill.App.3d 1051, 728 N.E.2d 726,245 Ill.Dec. 644 (1st Dist. 2000);
Hutchcraft v. Independent Mechanical, 312 Ill.App.3d 351, 726 N.E.2d 1171, 244 Ill.Dec. 860 (4'h Dist.
2000).
Section 55,
Page 9 of 9
' ·: .
. ·..
. ·;.
: f-".
:·.· .
. ·.· . :. .
(Effective January 1, 2011)
'_._•.;....,..
r"_,..,
....... .......
...
~-
ILLINOI~ STATE
BAR ASSOCIATION
.Illinois State Bar Association
October 2010
.
prop6rteht of the opinion has the burden of
sho~w th.e methodology or scientific principle ()n which the opinion is based is sufficiently established to have gained g~ral.
acceptance in the particular field in which it
belongs.
Adopted September 27, 2010, eff. January
1, 2011.
.
Comment
Rule 702 confirms that lllinois is a Frye
state. The second sentence of the rule enunciates the core principles of the"F1}te test for
admissibility of scientific evidence as set
forth in Donaldson v. Central Illinois Public Service Co., 199 ll1.2d 6$, 767 N.E.2d 314
(2002).
Rule 703.
BASES OF OPINION TESTIMONY
BY EXPERTS
.The facts or data in the particular case upon
whic:J:t an expert bases an opinion or inference
may be those perceived by or made known to
the expert at or before the hearing. If of a type
~asona~ly ~lied upon by experts in the particular field m fonning opinions or inferences
upon the subject, the facts or data need not be
admissible in evidence.
Adopted September 27,2010, eff. January
1, 2011.
.
56
Rule704.
OPI'NION ON ULTIMATE ISSUE
Testimony in the furm of an opinion or inference otherwise admissible is not objectionable because it. embraces an ultimate issue to
be decided .by the trier of fact
Adopted September 27, 2010, eff. January
1,2011.
Rule705.
DISCLOSURE OF FACTS OR DATA
UNDERLYING EXPERT OPINION
The expert may testify in terms of opinion
or inference and give reasons therefor without
first testifying to the underlying facts or data,
unless the court requires otherwise. The expert
may in any event be required to disclose the
underlying facts or data on cross-exan'rillation.
Adopted September 27,.2010, eff. January
1,2011.
r
57
~iB!t~:r:::
ARTICLE VII
OPINIONS AND EXPERT
TESTIMONY
, : (rt~ftl)g~te Witnesses, whether called by itself
lirl?Y~,F'~
.
', (<;)()bjections. Objections to the calling of
WJttles~es by the court or to interrogation by it
AAY£~ l;l18de at the time or at the next availq.'Qle dpportunity when the jury is not present.
, , Adopted September 27, 2010, eff. January
J,2011.
Rule 615.
EXCLUSION OF WITNESSES
At the request of a party the court shall
order witnesses excluded so that they cannot
hear the testimony of other witnesses, and it
may make tho= order of its own motion. This
rule does not authorize exclusion of (1) a party
who is a natural person, or (2) an officer ot employee ofa party which is not a I\atural person
designated as its representative by its attorney;
or (3) a person whose presence is, shown by a
party to be essential to ,the presentation of the
party's cause, or (4) a person authorized by
law to be present.
Adopted September 27, 2010, eff. January
1, 2011.
54
Rule 701.
OPINION TESTIMONY
BY LAY WITNESSES
If the witness is not testifying as an expert,
the witness' testimony in the form of opinions
or inferences is limited t<J thqse opinions or inferences which are (a) rationally based on the
perception of the witness, an\1 (1;)) help£ul to a
clear understanding of the witness' testimo~y
or the detertnination of afact in issue, imP, (c)
not based on scientific, technical, or other specialized knowledge within the scope of Rule
702.
Adopted September 27, 2010, eff. JaltUary
1,2011.
Rule702.
TESTIMONY BY EXPERTS
If scientific, technical, or other specialized
knowledge will assist the trier of fact to understand the evidence or to determihe a fact
in issue, a witness qualified flS an· expert by
knowledge, skill, ei<perience, training, or education, may testify thereto in the form of an
opinion or otherwise. Where an expert witness testifies to an opinion based on a new or
novel scientific methodology or principle, the
55