Legal Aspects of Crane Safety

1. Legal Aspects of Crane Safety Robert A. Rubin, P.E., Esq., F.ASCE ASCE/CI Crane Safety Committee McCarter & English New York, NY

2. The Players This section covers the rights, responsibilities, and liabilities of the parties involved with construction cranes. Crane manufacturer Crane rental company (�Lessor�) Design professional Contractor Owner

3. The Law There are three sources of laws surrounding construction legal issues: common law statues contract between the parties (if one exists) **If a contract is vague or silent, courts will often turn to precedent of common law for the needed interpretation.

4. Liability There are two distinct standards of care and one derivation that are generally applied to crane activities. Negligence Standard Reasonable care under circumstances � usually not deemed ultra-hazardous Absolute Standard Strict liability regardless of fault � when public is subjected to highly dangerous conditions � e.g. blasting Vicarious Liability (derivation of liability) Strict liability imposed on one party for acts or omissions of another party

5. Potentially Liable Parties Statistics show that over 95% of civil lawsuits are settled before trial or before verdict at trial Very few trial court decisions are published Relatively few appeals The iceberg of crane accidents below is much larger than it appears Most reported decisions deal with liability issues of parties other than the employer

6. Most Common Crane Accident Issues electrocution, double-blocking, boom collapse, workers struck by cranes, and tip-overs related and unrelated to foundation support,

7. Less Common Crane Accident Issues rope breakage, operator errors and load handling accidents.

8. Why Not Recorded? Insurance covers most crane accidents and insurers do not pursue the party believed at fault Workers Comp pays the injured worker even if the worker contributed to or caused the accident

9. Liability Legal Theories failure to properly maintain the crane, failure to install safety devices, and issues of supervision and control over the crane operator

10. Design Professional Liability Targeted relatively infrequently in crane accident cases Installation falls within �means and methods� - excluded in scope of services in owner-engineer contract Construction safety is specifically assigned to the contractor in the contract Design professionals usually have much lower levels of insurance coverage than crane lessors and contractors

11. Contractor Liability Crane operator rarely named as defendant No insurance, few assets Injured parties look to sue at higher levels Only non-employees can sue a contractor Worker�s Compensation Laws

12. Owner Liability Only occasionally named as defendant Liability rarely imposed Legal theories include Failure to provide safe work place Failure to exercise some degree of supervision or control of work being performed

13. Litigation Procedures Governed by statute in each jurisdiction Pre-trial and trial Approximately 90% of all filed construction cases are settled before trial

14. Key Pre-Trial Points to Consider A document demand might include inspection of daily reports, minutes of job meetings, records of payments, correspondence, photographs and similar documents Deposition testimony frequently provides basis for out-of-court settlement � it allows parties to consider feasibility of asserting their claims and defenses at trial

15. Alternative Dispute Resolution (ADR) Most popular non-binding forms: Disputes Review Boards Mediation Mini-trials Most popular binding form: Arbitration As binding and enforceable as final judgment in court Generally not appealable Formal litigation is better when large amounts of money or many parties involved

16. Resources EJCDC, AIA, AGC contracts Lexis or Westlaw � full text of cases Dispute Resolution Board � www.drb.org American Arbitration Association Construction Industry Arbitration Rules

17. Case Study Case #23 � Foundation-Related Tip-Over Universal Engineer & Builders, Inc. NY Crane accident in courts now

18. Case #23�Foundation-Related Tip-Over Universal Engineer & Builders, Inc., 225 So. 2d 612 (La Ct. App. 1970) Robert M. Miller was a crane Operator for Lafayette Steel Erector Co. He was sent by Lafayette to lift an experimental, offshore drilling, pipe break-out and lay-down machine, designed and built at Hub City Iron Works by Universal Engineer and Builders, Inc. The machine did not hang straight as Miller lifted, and when he hesitated, one of the crane�s outriggers collapsed. The crane tipped and destroyed the precious machine. Universal had wanted to re-test its machine after making some recent changes and additions, but it needed help moving the machine off of a truck bed and setting it in its upright position. Lafayette had set it up for testing in the past, so Universal�s project engineer called up the Lafayette president and put in his request. Lafayette sent a truck-mounted hydraulic crane and its Operator, Robert M. Miller. The crane had a retractable boom with a load capacity of 30,000 pounds when contracted, but only 21,000 pounds when extended to its full length of 50 feet. Universal�s machine only weighed approximately 16,500 pounds, and was a 40-foot long tower that narrowed in a gentle angle from 4�x6� at the base to 4�x4� at the top. On February 26, 1968, Miller and his crane came to move the equipment. The project engineer allowed Miller to make all the decisions, but he did tell Miller to make the same lift as had previously been made�moving the machine off the back of a truck and onto a 7-foot high platform. He also warned that the machine was now about 2,000 pounds heavier than before, but somehow, Miller thought he was told that the new total weight was only 15,000 pounds. Miller backed up the crane-truck until it was eight feet from the platform. He placed outrigger pads beneath the rear outriggers, fully extended the boom and prepared for the lift as Universal�s machine was rolled in on a 4-foot high flatbed trailer. Miller had the truck driver position the truck and trailer between four and six feet away, parallel and on the left side the crane-truck, both vehicles facing away from the platform. He then hooked a wire cable and shackle through the lifting eye of the tower. The truck was stopped as he began to lift, rolling the tower along a rolling tailboard until the base was on the ground and it was almost vertical. Finally, Miller told the truck driver to pull out slowly, as he lifted the tower almost a foot off the ground, carefully bringing it closer to the crane. At that point, Miller noticed that the tower was not hanging straight, but was at a 15 or 20-degree angle. As the truck had already moved away and the driver was standing on the crane with him, Miller considered his options for setting the machine down to straighten it out. Before he decided on a plan, a loud, jarring thud jolted Miller from his thoughts as the ground beneath the left rear outrigger (where the tower hung suspended) gave way and the heavy boom swung to the right. Miller tried to compensate by putting pressure on the swinging level in the opposite direction, but it was too late to equalize the swing and the tower jerked to the ground, pulling the boom down on top of it and sending the crane-truck onto its side. Miller and the truck driver leapt to safety just in time. The crane sustained damages to the extent of $5,979.36, but Universal�s machine was reduced to rubble, from the construction cost of $48,061.13 to an estimated salvage value of $150.00.