Reduce risk and liability by following these guidelines for roadway work-zone safety.
Nowhere is the need for safety management more acute than in road and highway construction work zones. Steadily rising congestion from more people driving on roads that cannot support the traffic load means greater work-zone risk. According to the Federal Highway Administration, there were 782 roadway work-zone fatalities in 2009, 85 percent of whom were motorists, and more than 40,000 injuries. Not only do these statistics represent needless loss and suffering for the victims and their families, but in many cases, they resulted in serious legal action, with owners, general contractors and subcontractors named in costly and time-consuming lawsuits.
When a contractor proactively manages a roadway work zone by implementing processes and procedures that demonstrate consistent compliance with plans, specifications and traffic-control requirements, a safer work zone is established for both employees and the travelling public, significantly reducing the likelihood of accidents. If a serious incident does occur, the processes implemented by the contractor are more likely to result in substantially reduced legal judgments and payouts.
Contractors who are serious about work-zone safety and reduced liability need to assess their current practices to determine where potential gaps exist. How well are you managing your potential exposure to liability in your roadway work zones? How well would your company be able to defend itself against litigation?
Contractor vs. Driver Perspective in the Work Zone
One of the key factors contributing to safety and liability issues in roadway construction is the competing interests in the “traffic control zone,” in which the need for the public to move through the work zone clashes with your work crew’s need to get the job done. From the workers’ perspective, drivers are somewhat of a nuisance, getting in the way of the project and often displaying confusion, distraction and impatience. From the drivers’ point of view, work crews are in their way, causing them to be late, distracting and confusing them and making the usual traffic problems even worse. This perfect storm of workers and drivers can become, very literally, an accident waiting to happen.
When accidents occur in your work zone, drivers rarely blame themselves. Contractors are much more likely to be held accountable for causing the accident, confusing drivers or incorrectly installing Traffic Control Devices (TCD), etc. If drivers decide to pursue litigation, your defense will be based on demonstrating how well you have managed the work zone per the conditions at the time of the accident.
What Happens After an Accident Occurs
The flurry of activity that typically occurs after an accident makes it very difficult to establish the pre-accident conditions and events that caused it. Post-accident actions may include:
- Emergency response, care for injured parties, Hazmat cleanup, etc.
- Reopening the roadway as soon as possible, potentially impeding an accident investigation
- Internal communications among management, safety, legal and claims
- External communications with the insurance carrier, family, legal advisers and media
- Immediate investigation
- Potential lawsuit, depending on the seriousness of the incident and mitigating factors
Amid this chaotic post-accident response, a well-established work-zone safety management program is likely to be your best defense against any legal action. What you do prior to an incident can be more critical than what you do after an incident.
Liability Factors
If you are hit with a lawsuit following an accident in your work zone, it is very common for multiple parties to be named, including any or all of the following:
- DOT, project owner or other “authority having jurisdiction”
- The general or prime contractors
- Subcontractors and suppliers
- Material haulers
- Engineers, designers and consultants
- Other “potentially involved” parties: equipment and device manufacturers, other drivers and equipment rental companies
Common lawsuit allegations include:
- Lack of compliance with work-zone standards such as the Manual of Uniform Traffic Control Devices (MUTCD – Federal and State) and written traffic control plan.
- Improper or ineffective signage, TCDs or striping
- Failure to effectively provide advanced warning
- Improper placement of vehicles and equipment
- Improper posted speed for conditions
- Failure to inspect
- Poor visibility
- Standing water
- Drop-offs
Developing and filing a lawsuit can take many months and even years, and progress through the courts is typically very slow. In the meantime, witnesses are lost, there are personnel changes, and people involved in the incident forget important details. Plaintiff’s attorneys have been known to deliberately cause delays to take advantage of lost memories and other changes, all of which can favor the litigant and work against you.
Not only can you do everything right and still face a lawsuit, but even a successful defense of your company can be quite costly in legal fees and often lead to insurance rate increases. Spending several thousand dollars upfront to follow best practices in work-zone safety management may save you from spending hundreds of thousands to defend a lawsuit without the proper policies, procedures and documentation required to successfully counter the plaintiff’s allegations.
Roadway Safety Standards
Work-zone safety management starts with a traffic control plan, which is developed as part of the overall work contract plans by the road project owner—usually a state or county entity. The traffic control plan covers traffic control elements such as advanced warning signs, taper lengths, lateral and horizontal buffer zones, attenuator trucks, etc. These elements are based on the federal MUTCD, Part VI, which the Occupational Safety and Health Administration (OSHA) incorporates by reference, and which sets the national standard for the temporary control of traffic in a work zone.
Lawsuits will often focus on the quality and effectiveness of the traffic control plan, making it essential for contractors to ensure that the plan meets MUTCD and OSHA standards and is fully implemented and adhered to by their work crews. Ultimately, it is the contractor who is responsible for traffic control on your project. You cannot rely on another entity to protect you. If a traffic control plan is defective or is not working, you will be held responsible.
Safety Management Best Practices
Take ownership of the traffic control plan.
- Do not make changes to the plan without the project owner’s written approval. The last approved traffic control plan is the one that follows you to court.
- Be certain that all elements of the plan, including any proposed changes, meet or exceed MUTCD/OSHA guidelines. Any potential OSHA penalties incurred by not following the guidelines can damage you in court.
- Develop an internal traffic control plan for your work crews that maps out the flow of construction vehicles, material deliveries, equipment and workers to prevent vehicular accidents, injuries and fatalities.
Ensure your workers are properly trained.
- Flaggers should have proper training or certification and wear appropriate high-visibility apparel in accordance with the MUTCD or company safety program.
- Ensure that all traffic control personnel are properly trained or certified and have the tools to properly carry out the traffic control plan.
Understand contractual risk transfer.
- Incorporate indemnification language referencing subcontractors into your insurance.
- Make sure the certificates of insurance naming additional insured on endorsements are correct.
- Receive proper endorsements before the work starts and subcontractors arrive at the worksite.
- Ask your insurance carrier’s risk control representative for additional information or a class on contractual risk transfer.
Continually monitor the work zone.
- Conduct daily work-zone inspections to protect your company.
- Continually monitor conditions, and make sure cones are upright, signs are in place, warning beacons are working, etc.
- Do not rely on the project owner’s inspector diaries, which may not be frequent or thorough enough to protect you in case of a lawsuit.
- Daily inspections can help you uncover and correct ongoing problems in the traffic control set-up and help ensure that you know the conditions prior to an incident, or even better, to help prevent an accident.
Document everything.
- The standard rule is that if you did not document it, it did not happen.
- Keep daily documentation logs.
- Since traffic control devices can be changed during an accident investigation (i.e., knocked down by emergency vehicles), make sure that what was done prior to the accident is well-documented.
- Choose an effective documentation method, and be consistent.
- Written documentation is effective if you make sure the traffic control person consistently fills out the appropriate paperwork and sets up an adequate storage and filing system for access when needed.
- Photos can supplement but not replace written documentation. Photos show one point in time but are subject to interpretation and can be challenged in court.
- Videos can take the guesswork out of written documentation or photos, but they must be set up correctly, carefully stored, cataloged and protected from theft or damage.
Delineate responsibilities for work-zone monitoring.
- Daily monitoring should be conducted by the traffic-control person.
- Auditing for content and documentation effectiveness should be done by the safety manager or project manager on a routine basis.
Plan for an effective post-accident response.
- Have trained personnel on-site to administer first aid, control traffic to prevent further accidents, handle media, initiate a phone tree, etc.
- Immediately after an accident, take photos and/or videos.
- Contact legal counsel immediately, setting up attorney/client privilege with a professional investigator sent by your attorney. (Interviews and investigations conducted on your own can be discovered by opposing counsel.)
- Contact your insurance carrier.
Ultimately, in case of an accident, subsequent investigation and possible litigation, you will be second-guessed on every aspect of your work-zone traffic control. Diligent safety management following best practices can not only help reduce the risk of accidents in your work zone but also better prepare you to respond effectively to protect your company from major losses if an accident occurs.
Construction Safety Source
Looking for a safety resource on the Web? Visit safety.cat.com, a free tool that provides comprehensive information on safety standards for all sectors of the construction industry. Search information by industry or machine family, and access quick links to videos that illustrate everything from operator tips to maintenance procedures. “Toolbox Talks” offer ready-made outlines for leading safety discussions, and “Virtual Walk Around Tours” demonstrate basic procedures for inspecting a machine prior to start-up.
Construction Business Owner, February 2011
