By: Richard E. Daniels, P.E.
A pedestrian was severely injured when he was crossing a street at an intersection, within a marked crosswalk and during a green traffic signal, when he was struck by a dump truck that was making a left turn. The truck driver was transporting crushed stone between two construction sites, Site 1 and Site 2. The matter was settled for more than $17,000,000 against the construction site participants for failure to properly vet the truck driver, including failure to ensure that he had a valid driver’s license, a reasonably safe and inspected truck, and appropriate insurance. I prepared the Plaintiff’s liability report in this matter for Attorneys Scott A. Parsons and Alexandra Loprete of O’Connor, Parsons, Lane & Noble.
The parties to the litigation were the following:
Construction Site 1
The owner/developer contracted a general contractor. Their agreement required the following:
- The general contractor was required to submit to the architect and the owner for approval the names of all subcontractors they proposed to use on the project. Contracts between the general contractor and subcontractors were not allowed to be awarded without their approval.
- The general contractor was fully responsible to the owner for the acts and omissions of its subcontractors and all persons either directly or indirectly employed by such subcontractors.
- The general contractor was responsible for initiating, maintaining, and supervising all safety precautions and programs in connection with the performance of the contract.
The general contractor subcontracted a project manager by an oral contract.
- The project manager testified that they were responsible to know which subcontractors and sub-subcontractors had been (or had not been) vetted and were authorized (or not authorized) admittance to the Site 1.
The general contractor contracted a site subcontractor. Their agreement required the following:
- The site subcontractor was responsible to take reasonable safety precautions for performance of their subcontracted work and to comply with applicable safety measures and with applicable laws, ordinances, rules, regulations, and orders of public authorities for the safety of persons or property.
- The site subcontractor was not allowed to assign or subcontract their work without the written consent of the general contractor.
The site subcontractor subcontracted the truck driver to haul excess crushed stone from Site 1 to Site 2. They had an oral contract.
- The truck driver owned his truck and was an independent contractor.
- The name of the truck driver’s company was displayed on his dump truck.
Construction Site 2
The owner/developer/general contractor was the same entity as the project manager for Site 1; they subcontracted the same site subcontractor that was working at Site 1, but by an oral contract.
The truck driver was delivering the crushed stone from Site 1 to Site 2.
Consistent with engineering and construction practice, at Site 2:
- The general contractor was responsible for overall safety of the workers and was responsible to ensure that safe-performing subcontractors were hired to facilitate safe work.
- The site subcontractor was responsible to ensure that safe-performing subcontractors were hired to facilitate safe work.
Construction work is planned, and planning is an ongoing process throughout the duration of work.
Parties engaging construction services, buyers, should evaluate their prospective contractors’ safety performance. Buyers who take active steps to select safe contractors and to monitor construction safety had fewer accidents on their projects than did less involved buyers in similar industries.
Safety on the jobsite is the critical responsibility of the owner, although the owner often delegates this responsibility to the general contractor.
On projects that include a professional construction manager, the construction manager’s duties include supervising the selection of subcontractors.
The general contractor has overall responsibility to manage and supervise the construction work, coordinate construction activities including subcontractor participation, and manage job site safety.
While the most assessed aspect of construction site safety is safety of workers on the construction site and compliance with OSHA regulations, the construction project participants are also responsible to take appropriate actions to protect the Public.
The Truck Driver’s Record
The 18-year driving record of the truck driver indicated that he had received thirty-five (35) citations for various violations. One (1) citation was dismissed. Relative to this incident, he received an additional fifteen (15) citations.
According to the State Police Report, numerous deficiencies/violations were identified for the incident dump truck:
- Twenty-two (22) violations, including loose steering column, excessive weight violation, unregistered vehicle, uninsured vehicle, brakes out of service, clamp or Roto type brake out of adjustment, automatic air brake adjustment system that failed to compensate for wear, wheel fasteners/lug nuts not fully tightened, main leaf spring assembly cracked/welded rear right side.
- The vehicle weight exceeded the rated 80,000 lbs. gross vehicle weight by approximately 10,000 lbs.
The State Police Report explained, “After careful inspection of the roadway, there were no hazards and/or roadway conditions which may have contributed to the collision. At the time of the collision, the weather was clear, and the roadway was dry.”
The Failures of the Participants
The vetting of the truck driver was a reasonably and readily achievable safety practice. Prior to hiring the truck driver, the site subcontractor should have determined his safety qualifications by verifying his credentials, as follows:
- Require the truck driver to show his driver’s license and to voluntarily report his driving history, including identifying any violations. At their option, the site subcontractor could have verified this information by requesting this information from the state motor vehicle commission.
- Require the truck driver to provide his current truck registration and insurance information. At their option, the site subcontractor could have verified this information by requesting this information from the state motor vehicle commission.
- Require the truck driver to document current liability, personal injury protection, and uninsured motorist coverage insurance. These three types of insurance are mandatory in the state.
- Visually examine the truck driver’s truck specifically for a current inspection sticker and generally for overall condition.
The evidence showed that the truck driver was hired by the site subcontractor without being properly vetted. None of the above-noted issues were identified before the accident.
None of the higher-tier project participants took any actions to ensure that all subcontractors were properly vetted. No one requested any documentation as specified in the agreements.
Further, the project manager (Site 1) controlled access to the Construction Site 1 and admitted the truck driver to the site on two occasions for the purpose of removing stone from the site, which was a somewhat unusual construction activity. They also allowed the truck to leave the site in an overloaded condition.
All project participants failed to comply with engineering practice and/or violated their contractual responsibilities and were a cause of this accident.
Had the sitework subcontractor (Site 1 and Site 2) and/or the general contractor (Site 1) and/or the project manager (Site 1; also owner, developer, general contractor at Site 2) and/or the owner/developer (Site 1) vetted the truck driver, or ensured that he had been properly vetted, it is likely and expected that his service would not have been engaged and this incident and injury to the plaintiff would have been prevented.
At CESI our team of engineers and other professionals is able to evaluate construction safety matters dealing with any number of accidents. For more information or to discuss a construction safety matter, please contact us at 610-296-2250 or firstname.lastname@example.org.