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Reasonable care for COVID times: A legal view

Successful construction managers care about jobsite safety. After all, their job is to lead a team that transforms huge quantities of material into real estate. It’s a dangerous and complicated task, but the best managers know how to deliver a high-quality project while sending onsite workers safely home each night. 

Nevertheless, in an industry as large and dangerous as construction, there will be injuries and accidents though they occur less frequently than in past years. According to the U.S. Bureau of Labor Statistics, the total recordable incident rate for construction declined 42% over the ten year period from 2007 - 2017. That said, construction still accounted for over one in five of all on-the-job deaths in the United States for 2017. Accidents, many of them serious, still occur.

When an injury does occur, and a tort claim is made (beyond worker’s compensation) the construction manager will be called on to establish that it used REASONABLE CARE in designing and implementing the program to prevent injuries. Lawyers for the injured worker will seek evidence in discovery that the construction manager did NOT use reasonable care. Reasonable care is undefined until a jury issues its verdict. All parties are protected by insurance with multiple layers of coverage for these types of claims. 

Covid-19-dashboard-highlightsCOVID-19 dashboard showing cross-project compliance management

Following standard practice for the industry (i.e. doing what everyone else does) provides some evidence of reasonable care. Holding toolbox talks for weekly discussion of safety concerns on the jobsite, for instance, constitutes such evidence. Regular site inspections with actions taken on observations, is also standard. But during the COVID-19 pandemic, new mitigation tactics such as social distancing and mask wearing are required on jobsites, and that means demonstrating reasonable care also takes on a new meaning. Construction organizations need to ask themselves, how are contractors measuring compliance with these mitigation measures? Can they prove they are taking measures to ensure COVID-19 related safety? 

When the plaintiff’s lawyer hunts for reasons to argue that the firm was providing NOT reasonable care for worker safety, Newmetrix (formerly Smartvid.io) customers have a shield. Use of the Newmetrix system is not standard, ordinary care for safety. Its use is above and beyond ordinary practice, and it speaks to a commitment to safety higher than mere reasonable care. In the COVID-19 era, Newmetrix customers can prove they are measuring and working to improve specific behaviors like mask wearing and social distancing. 

Will judges immediately dismiss a personal injury case against a construction manager once they learn the defendant uses Newmetrix? While that would be nice, the law does not work that way. Most cases settle out of court and the strength of the evidence around liability is a major determinant of the settlement amount. And any settlement of work injury claims against Newmetrix construction management customers should reflect their commitment to care far beyond mere reasonable care.

Want to commit to higher safety standards including how your organization is complying with mask wearing and social distancing? Get in touch.

Written by Charles Cobb

Charles W. Cobb is a construction lawyer who, for six years, was in-house counsel with a large Boston area construction manager William A. Berry & Son, Inc. serving institutional, high tech and health care owners. Berry was acquired by Suffolk Construction in in 2007. Prior to that, he worked as an attorney handling commercial leasing and business law. At the start of his legal career, Chuck worked as a trial lawyer on insurance claims for both plaintiffs and defending insureds for carriers. Always interested in technological improvements to business practices, Chuck helped with field adoption and implementation of reporting with a tablet-based product developed by Newmetrix's CEO’s prior company.

View more posts by Charles Cobb.

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