A construction expert’s opinion: perseverance pays off
Seven years after the first trial, Nevada’s Supreme Court reversed a lower court’s decision regarding OSHA’s jurisdiction involving a construction accident in Las Vegas.
In 2007, a walkway was built over temporary HVAC piping in the parking lot of a local restaurant. The walkway was connected to a hotel under renovation in Las Vegas. The walkway was necessary to allow access to the rear door at the loading dock, which was located in the same hotel under renovation. As the owner ascended the walkway carrying a 40 lb. sack of salt on his shoulder for one of his dishwashers, he grabbed the temporary wood handrail to steady himself. It broke, and he fell into the piping. Picking himself up and remounting the bag of salt on his shoulder, he then grabbed the handrail on the other side of the temporary walkway. Again, this section of handrail broke as well. This time Mr. Calabrese fell and did not get up. An ambulance was called as his injuries were severe.
As plaintiff expert representing the restaurant owner, I testified that neither the walkway nor the temporary wooden handrails complied with OSHA requirements. The contractor’s attorney argued that (a) OSHA does not have jurisdiction since Mr. Calabrese is not an employee, and (b) OSHA does not require handrails on walking-working surfaces below the threshold height of four feet. The judge ruled favorably for the contractor.
A second trial was established with a different set of attorneys. Using the provision that OSHA would not be allowed to be used as evidence, I testified that the handrails were flimsy, and failed to meet any standard of care within the construction industry. Once again, attorneys for the contractor argued that temporary handrails were not required. After a three day contentious trial, the jury ruled favorably for the contractor. See “Jury Verdicts Lacking Common Sense” published in the August 31st edition of the Engineering News Record, 2011.
Thanks to the determination of the original attorney, in August of 2014 Nevada’s Supreme Court Ruling 59407 overturned the District Court, stating: “We conclude that the walkway constitutes a place of employment where adequate safeguards must be provided. Accordingly, the district court committed reversible error in determining that OSHA standards, to the extent they were adopted by Nevada, were not admissible.”
Recently, courts have ruled that any person injured when legitimately found in a construction zone, is protected by OSHA regardless of their being an employee or not an employee. Personnel at the scene of an accident who could have prevented its occurrence, as well as those injured as a 3rd party, can be applied under OSHA’s jurisdiction. This ruling, however, is not automatic, as each state makes its own interpretation.
Having testified in three states where OSHA’s jurisdiction in 3rd party construction accidents was upheld, it took seven years and two trails for the Nevada Supreme court to do the same for the restaurant owner in Las Vegas. Miracles happen. God’s mills grind slowly but surely.