Lawyer Monthly Magazine - August 2019 Edition

Expert Witness By Timothy G. Galarnyk, Construction Risk Management, Inc. 84 WWW.LAWYER-MONTHLY.COM | AUG 2019 How do you determine who is at fault for the accidents that may occur during construction works? Determining responsibility rather than fault can take some time. In today’s world “fault” is an opinion where responsibility is a conclusion. Construction acci- dents begin to evolve over min- utes, hours and perhaps days before the catastrophic incident itself. It is therefore critical for a thorough forensic investiga- tion to have ALL information, all documents, all evidence and materials regarding the involved people, companies, government, police, fire and perhaps friends and relatives of the victim(s) and all the parties involved. Then the ‘what hap- pened’ is explored. Like read- ing any book, you MUST start at the beginning. What are common accidents that occur on construction sites? Which are commonly taken to court? While the most common causes of construction fatality acci- dents – falls(~39%), excavation/ trenching(~10%), struck-by/ caught in-between(~9%) and electrocutions(~8%), each in- cident is unique to its own set of facts. It is therefore critical to start all investigations at the BEGINNING of the evolution of each incident. Timing of each contributing or occurring event An “accident” is an unintentional, unplanned and unexpected incident (or event) that occurs without apparent or deliberate cause. Below, Timothy Galarnyk explains what common accidents occur and how he determines who is at fault. leading up to each incident is unique to each incident and critical in concluding who is re- sponsible for or shares in the re- sponsibility for the incident. What can companies do to avoid litigation or even accidents in the first place? All parties involved in any con- struction project of any size, including each employer, all employees, all parties to the contracts and the owners/de- signers/developers/CM need to participate in incident preven- tion measures to the extent of their project involvement. Employers generally have the duty to provide to its employ- ees, a worksite and a place of employment free of recognized safety and health hazards. Each employee shall comply with occupational safety and health standards and all rules, regulations, and orders issued pursuant to this Act which are applicable to his/her own ac- tions and conduct. Knowledge of events related to the incident must be determined regarding each party. Pre-planning of construction works, tasks, and understand- ing the hazards associated with construction is generally neces- sary and can play a role in inci- dent prevention. What occurs if the accident was due to an unknown defect, rather than negligence? If the incident occurs due to an unknown defect (unknown to absolutely everybody), it may, therefore, be an “accident” (but this can only be determined after a detailed and thorough investigation). Because the in- cident was unintentional, un- planned, was unexpected and/ or it occurred without apparent or deliberate cause the incident may be a “true accident”. It is possible and common for an incident to involve parties, some of whom have no responsibil- ity (an “accident” to that entity) and to other parties who may have a part or all of the respon- sibility (an incident to those par- ties). All incident commonly involve unique and specific events, timelines, knowledge or not, specific expectations and other factors idiosyncratic to each in- cident. Each case is unique with its own set of facts. LM Construction Safety: An Accident or Negligence? Timothy G. Galarnyk is a rare, field experienced forensic investigator and construction safety expert. With more than 40 years of education, training and field-experience, Galarnyk is the founder and CEO of the international firm, Construction Risk Management, Inc. He has been involved in the investigation of – literally – hundreds and hundreds of construction incidents of every kind and of most, if not all causes. This includes crashes that occur in highway construction work zones, falls, excavation/ trenches, electrocutions, struck-by and caught in- between, crane collapses, construction collapses and defect including bridge collapses and nearly all types of cases where something goes “wrong” related to construction activities. TIMOTHY G. GALARNYK CONSTRUCTION SAFETY www.safetyinconstruction.com