If you own a construction company, you might ask yourself, "How can I protect myself from personal injury lawsuits?" If a good lawyer had to answer that question in one sentence, he or she might say, "Just make sure that you follow the common practices of the industry."
In the sections that follow, we explain why common practices are important and when adhering to common practices might not be enough.
(Keep in mind, this only matters in personal injury lawsuits, not workers compensation cases.)
Every construction company has a legal duty to act in a reasonably safe manner. In order to bring a lawsuit against a construction company for a personal injury, a plaintiff must prove that the company failed to act in a reasonably safe manner under the circumstances -- and that that failure caused the injury.
So, the big question is, how does a court determine what is a "reasonably safe manner"? The answer is that courts struggle with this. Keep in mind that most judges are not experts in construction safety. So, courts have to rely on outside information to determine what constitutes a "reasonably safe" workplace.
One source that judges rely heavily on is common practices in the industry. As the owner of a construction company, you are not obligated to guarantee a perfectly safe workplace. You are only obligated to maintain a reasonably safe one. What is reasonable? Well, usually, when a practice is common, it is reasonable to engage in that practice.
Remember the childhood excuse that never worked: "everybody else was doing it!" Well, that excuse usually works in law. If a plaintiff sues a construction company, claiming that a practice of the construction company caused an injury, if the construction company can prove that the allegedly dangerous practice is common in the industry, the construction company will usually win the lawsuit.
No. Relying on common practices works most of the time, but not all of the time. Why not? Simple, the majority is not always right. Consider railroad safety as an example. When railroads used manual coupling devices, coupling was an extremely dangerous activity, leading to a large number of injuries and fatalities every year. Shortly after automatic coupling devices hit the market -- which were much safer -- most railroads were still using manual coupling devices.
Imagine you own a railroad company that is purchasing new train cars shortly after automatic coupling devices hit the market. The cars with automatic coupling devices are 5% more expensive, but much safer. Most other railroads are still using manual coupling devices. Would it be "reasonable" for you to purchase the cars with manual coupling devices?
The answer is probably, "no." The common practice in the industry is still to use manual couplers. But you know that the automatic devices are much safer and they are not significantly more expensive. If an employee were to become injured while operating one of the new manual coupling devices, a court would probably hold that you failed to provide a reasonably safe work environment. You could have made the environment much safer at a relatively low cost. You knowingly chose not to do so. That is the type of decision for which businesses end up facing liability.
The coupling example may seem like a rare scenario, but construction company owners face similar decisions every day, in what equipment they buy, in what safety training they provide, and in what procedures they require of their employees. In order to avoid liability, construction companies should consider the common practices in the industry, but should also scrutinize those practices, considering whether they actually create a reasonably safe workplace.