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ALERT: The Changing Landscape of Crane Accident Litigation

December 16, 2016

In 2010, the Occupational Safety and Health Administration (“OSHA”) implemented changes to its regulations that govern crane operation safety, which are codified at 29 C.F.R. § 1926.1400 et seq.  These revisions have shifted the responsibilities and roles of employers, owners, insurers, and contractors on a construction project involving crane operation, which in turn have changed the landscape of crane accident litigation.  In general, OSHA’s most recent revisions subject employers and site owners to additional potential liability (even if they are not on site); all lift crew workers, not just the operator, must maintain certification and communication requirements; and all workers on site are now required to signal the crane operator to stop operation if an unsafe condition is noticed.  As discussed below, these changes to the OSHA regulations change the landscape by placing a statutory duty on every contractor and worker on site to ensure crane lifts are performed safely.
Spreading the Responsibility: Controlling Entities
Any party that has “the overall responsibility for the construction of the project” is now a “controlling entity” on a given project.  While the statute identifies general/prime contractors and construction managers in this role, it can be argued that the definition includes lead subcontractors, or even project owners.  OSHA intends to hold each controlling entity separately liable for any accident that results from a violation of the regulation.  
The first explicit responsibility allocated to “controlling entities” is the responsibility for ground conditions.  Traditionally, the responsibility to ensure adequate ground conditions prior to a crane lift was borne on the crane subcontractor, but now any controlling entity bears this responsibility.  This provision requires “controlling entities,” including site owners, to inform the crane operator of any hazards that they know of, should know of, or are identified in documents possessed by the “controlling entity.”  Another explicit responsibility imposed on “controlling entities” is to prevent “pinch accidents” and coordinate operations where there are two or more cranes with overlapping radii.  This responsibility includes marking hazard areas and providing training to employees working near or on the equipment.
While these responsibilities are explicitly listed in the standard, it is important to note that the listed responsibilities are not intended to be exclusive.  See 29 C.F.R. § 1926.1400(e). 
New Licensing, Certifications, and Training Requirements
In response to the passage of these OSHA regulations, crane operators are now required to pass specific state certification standards and if no such state standard exists, they must be certified by a nationally accredited testing agency, or the military. 
While certification and training for crane operators is nothing new, requiring all hand-signal personnel and signalers to meet certain certification requirements is.  Although no specific coursework is demanded, at minimum the signalers must pass both a practical test and either a written or oral exam.  Evidence of the employee’s passage must be maintained by the employer.  Notably, the only signals now acceptable on site are OSHA-approved hand signals.  This is a significant departure from industry practice, where an array of signals was acceptable so long as the crew and operator all agreed and understood them.  
Emergency Stop
OSHA now requires any person on a project site that notices an unsafe condition to give the emergency stop signal to the designated signaler, who must then relay it to the operator.  Further, the operator must obey the emergency stop from any source, at any time.  This means that any individual on site that is able to recognize an accident is imminent and has the ability to issue an emergency stop signal yet fails to do so, is violating OSHA.
Moreover, OSHA is clear in empowering any operator suspecting a safety issue in good faith to stop operation until the issue is resolved by a “qualified person.”  OSHA has the power, backed by Supreme Court precedent, to protect such an operator from employer retaliation, if the operator’s concern about safety was in good faith.
Importantly, for those who employ crane operators, operators are now required to stop operations immediately if safety devices on the crane are not working properly.
Litigation Considerations
The main theme in countless crane accident cases is that the crane operator is the “captain of the ship,” controlling and leading all aspects of the crane lift.  While the captain of the ship mantra has always been incorrect, OSHA now ensures that all entities and individuals on a given construction project share many of the responsibilities of crane operation safety.  In addition, OSHA now strives to raise the standard of qualifications and training of crane operation personnel, which includes a variety of trades being responsible and knowledgeable on crane signaling and site prep.  Contractors and owners are no longer able to feign ignorance of crane operation industry standards, arguing that the crane subcontractor possesses all of the specialized knowledge, so should bear all of the liability if an accident occurs during a lift.  
Despite the significant changes to OSHA regulations governing crane operation, the regulations codify what has been industry standard for quite some time.  What’s important, however, is that OSHA has clarified any ambiguity in exactly what is required of everyone involved in a construction project that include crane lifts.  If anything, this clarity will simplify the roles, liability and defenses of each party involved in ongoing crane litigation.  
The most important aspect of the OSHA regulations is to be aware of the changes and that the requirements and responsibilities of those on site has changed considerably, making it likely workers and companies have new obligations before and during a crane lift.  If those obligations are not met, violators are subject to fines, penalties and an increased likelihood of civil liability.  
For more information, please contact Christopher Marvos at Christopher has represented a variety of companies in complex litigation, including the automotive, heavy equipment and insurance industries, in both state and federal courts.  His experience includes litigating crane matters and is a certified crane operator. 

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