The U.S. Labor Department estimates that 65 percent of the construction industry works on scaffolding. And every year people die or sustain serious injuries when they fall from scaffolding. Navigating these cases in litigation can be tough. These injuries generally occur on multi-employer worksites where scaffolding is set up so that workers from many different trades can perform their jobs. Most of the time, the workers working on and around the scaffolding are unfamiliar with scaffolding safety requirements and it can be difficult to establish responsibility for scaffolding failures.

By nature, scaffolding is temporary. The scaffolding may have completely fallen apart at the time of the accident, or it may have been dismantled shortly thereafter in the normal course of the construction work. Either way, it is difficult to establish solely from memory how the scaffolding was erected and why it failed. It is important to create and execute a detailed investigation and litigation plan when handling these cases.

We have outlined some tips below on how to identify rules, documents, and witnesses necessary to prove your case.

Standards for safe erection of scaffolding

Title 8 of the California Code of Regulations, otherwise known as Cal-OSHA, sets the primary standards for determining whether scaffolding was installed safely (8 C.C.R. 1635.1 – 1667). And Cal-OSHA regulations may be admissible to establish duty or standard of care. (Elsner v. Uveges (2004) 34 Cal.4th 915, 928 [OSHA regs are to be treated like any other statute or regulation and may be admitted to establish a standard or duty of care in all negligence and wrongful death actions].) Make sure and review the standards applicable to Access, Work Space, and Work Areas (8 C.C.R. 3270-3280); Safe Practices and Personal Protection (8 C.C.R. 3300-3416); and the Erection of Structures Including Falsework, Shoring and Framing System (8 C.C.R. 1709-1722.1), as they may come into play in your case as well.

An easy to search index of all Cal-OSHA regulations including those applicable to scaffolding can be found here: www.dir.ca.gov/samples/search/query.htm.

After you have reviewed the California Regulations, turn to the contractor’s own training materials, safety manual, and Injury and Illness Prevention Program (8 C.C.R. 3203) which often adopts the Cal-OSHA requirements and outlines additional standards. Keep in mind that regulations may be relevant to the standard of care where an employer adopts the regulations as company policy. (Dillenbeck v. City of Los Angeles (1968) 69 Cal.2d 472 [“Such rules implicitly represent an informed judgment as to the feasibility of certain precautions without undue frustration of the goals of the particular enterprise”].) The contractor’s witnesses should admit that these regulations were a job requirement and inform them of the standard of care applicable to their work.

Once you understand the rules that may have been violated, starting looking for documents and witnesses.

Document checklist

Make sure you include a request for all these documents in discovery:

• All contracts, including change orders, for the erection and/or dismantling of scaffolding.
• All contracts, including change orders, between the landowner and general contractor.
• All requests for modifications to the scaffolding or shoring.
• The scaffolding contractor’s entire job file for the work.
• Communications regarding the subject incident and the temporary structure.
• Diagrams, drawings and design plans for the scaffolding.
• The scaffolding manufacturer’s product guide.
• All progress photographs of the work site.
• All photographs relating to the subject incident.
• Policies, procedures, and training materials regarding the installation, dismantling, and/or modification of the temporary structure.
• The contractor’s Injury and Illness Prevention Program(s) (IIPP) applicable at the time of the subject incident.
• The contractor’s safety manual applicable at the time of the subject incident.
• All documents memorializing or relating to safety meetings.
• All documents memorializing or relating to inspections of the work site.
• All written or recorded statements regarding the subject incident.
• All reports regarding the subject incident.
• All documents showing the cost or charge for the scaffolding work such as time and materials forms, invoices, estimates, and similar documents.
• All documents showing the work performed on particular dates such as daily logs, progress reports, time sheets, and similar documents.
• All reports or investigatory materials from Cal-OSHA.

In addition to requesting these documents from the defendants, also consider third-party subpoenas to other contractors working on the project for some or all of these documents as appropriate.

Witness checklist

A scaffolding contractor is a specialty-licensed contractor who erects metal or wood scaffolding, including temporary sidewalk- sheltered construction-work barricades. Most projects, larger than small renovations, utilize a specialty scaffolding contractor hired by the general contractor or homeowner.

There are two key people to identify at the outset—the estimator and the draftsman. Both these individuals will have information and knowledge of how the scaffolding was designed and why it was designed in a particular manner for the site conditions. The estimator is the person who visited the installation site, determined what the job required, and wrote an estimate for the work. The draftsman is responsible for creating drawings or plans showing the number and type of scaffolding pieces required and how they are to be assembled onsite.

Next, you’ll want to find the scaffold contractor’s “project manager” who was responsible for planning, coordinating, and overseeing the erection, inspection, and dismantling of the scaffolding according to the construction schedule. Some companies also have a “safety director” responsible for managing and overseeing safety aspects—make sure and ask about that person as well. Both these individuals will have information relating to the timing requirements of the work, and any changes or problems that were encountered along the way.

Finally, you will need to depose the individuals who erected the scaffolding, “scaffold erectors.” They are the individuals responsible for completing the physical act of installing, modifying, inspecting, and dismantling the scaffolding system pursuant to the terms of the construction contract and work schedule. It is important to identify who was the “qualified” person pursuant to 8 C.C.R. § 1637(k) who directed and supervised the erection and dismantling of the scaffolding. Often this is a scaffolding “foreman” or more senior member of the installation team. But don’t overlook the “laborers” involved, they are often a wealth of knowledge as well.

Conclusion

These cases pose challenges on several fronts. Pursuing a case against a scaffolding contractor requires a good understanding of the regulations and knowledge of how the system should have been installed versus how it was installed at the time of the failure.
A strong, focused inquiry into the issues and documents outlined above will help you create a litigation plan to pursue a fair resolution for your client. To learn more about our litigation strategies, or if you want to team up on a scaffolding case, please give us a call.

A more in-depth version of this piece was originally published by Plaintiff Magazine in March of 2017.