The Competent Person in All Construction
Richard A. Rice, PE
The safety of construction workers for all construction activity in the United States is governed, at a minimum, by the laws propagated by the Occupational Safety and Health Administration (OSHA). The vast majority of OSHA laws address minimum/maximum distances, safety factors, and performance for this, that, and other construction related items. In each of these is a person who is responsible to make sure the OSHA laws are obeyed and is responsible for the general safety of the construction site. That person is the “Competent Person.” The general definition for Competent Person from OSHA is:
The term “competent person” means a person who is capable of recognizing and evaluating employee exposure to hazardous substances or to other unsafe conditions and is capable of specifying the necessary protection and precautions to be taken to ensure the safety of employees as required by the particular regulation under the condition to which it applies.
It is paramount for claims and legal professionals to understand the importance of the presence and activity of a Competent Person involved in their construction cases. This paper will discuss the Competent Person in the construction contract, one instance where the Competent Person did well, and another where he/she could have performed better.
A Little Background – The Construction Contract
It is customary in construction contracts (road, building, etc…) that the project Owner requires the General Contractor (GC) to have one or a team of Competent Persons to watch the construction activity to make sure the project is being constructed as designed and all OSHA safety protocols are obeyed. The GC’s contract with the various sub-contractors (subs) on a construction site will state that the subs will provide their own Competent Persons to oversee their own work. While all the players on a construction site are responsible for construction safety, it is the GC who is contractually the ultimate authority for recognizing and correcting construction safety issues.
A large GC was being sued by the estate of a man who fell and died on a commercial construction site. The attorneys for the GC requested an evaluation of the GC’s fall protection protocols.
The GC was contracted to renovate a multi-level shopping center. Part of the renovation was the removal and replacement of an escalator. After removing the escalator, a 6-feet wide by 20-feet long hole was created in an elevated concrete slab that would be present for several days. The fall protection evaluation revealed that the GC installed all the barricades and warnings as required by OSHA. The man who fell was a rental company technician that violated the barricades and warnings for no apparent reason. As a result of the fall protection evaluation that found that the Competent Person did their job, the civil case against the GC was dismissed.
Open Hole in Roof
On commercial projects with large flat roofs, holes are created in the roof to accommodate air conditioning and other mechanical systems. These mechanical holes can measure many feet in each direction. OSHA requires fall protection for a hole that is 2 INCHES in its least dimension.
The contract between the GC and the air conditioning sub required that the sub build a temporary hole covering that, in addition to being structurally sound, could not be horizontally displaced when stepped upon. The hole was approximately 4-feet by 4-feet. The prevention of the cover displacement is accomplished by installing blocks beneath the cover and against the hole sides. No blocks were installed to prevent horizontal displacement.
A 19-year-old construction laborer was walking on the flat roof and stepped upon the plywood used for the hole cover. Because there were no blocks, the plywood cover moved from over the hole and the laborer fell over 100 feet and suffered significant injuries.
The forensic investigation revealed that the GC’s Competent Persons were onsite during the hole cover installation, and for many days afterwards until the laborer was injured. Not once during that time did the GC designated Competent Persons make an effort to insure the blocks were installed beneath the plywood hole cover. The notes from the GC’s Competent Persons and meeting notes taken during the GC’s mandatory safety meetings revealed that hole covers were never inspected. Even though the sub installed the plywood hole cover, it was determined that the GC was ultimately responsible for making sure the blocks were installed.
The ultimate authority on a traditional road, building and other construction sites is the General Contractor. The General Contractor provides Competent Persons to protect the interests of the Owner, and provide a safe work environment for the construction workers.
If you would like more information on this subject, please contact Mr. Rice at 404.395.7441 or by emailing him at firstname.lastname@example.org.