Watch Out for Liability from Above

Kegler Brown Construction Newsletter

Ohio's Administrative Code requires that:

"Overhead protection shall be provided for employees on a scaffold exposed to hazards from overhead."

Any violation of that specific safety requirement ("VSSR") allows an injured Ohio employee to receive not only regular workers' compensation benefits, but also to recover additional compensation against the employer as a "penalty." Therefore, the question arises as to what adequate "overhead protection" means. The Franklin County Court of Appeals has recently answered that question in a most surprising fashion which has created almost limitless liability for contractors or subcontractors utilizing employees on scaffolding or other elevated work platforms when there are others working overhead. State ex rel. John T. Mahoney v. Team America 3, Inc., Case No. 01AP-374, unreported decision dated December 31, 2001.

In that case, the employee was working on a scaffold when he was allegedly struck in the head by a falling stone. The scaffold on which he was working had no planks, plywood, or other protection directly positioned above his head to protect him. However, the employer utilized other precautions including: 1) requiring the use of hardhats; 2) requiring the use of toe boards on a different scaffold which was positioned above the scaffold where the employee was working; 3) using plywood on the end of the scaffolds; and 4) telling workers on the scaffolds not to work on the end of the scaffold closest to the higher scaffold. The Industrial Commission and the Magistrate reviewing the Commission's decision, found that these measures were adequate overhead protection. However, the Court of Appeals stated that while these four precautions listed above were "legitimate safety precautions, "they could not constitute "overhead protection" for workers on a scaffold which has nothing directly overhead. The Court of Appeals stated that while a hardhat is "the closest to overhead protection," it did not constitute adequate overhead protection because it didn't protect other parts of the body from being struck by falling stone or other objects.

This decision may well be appealed to the Ohio Supreme Court. However, in the interim it appears to expose Ohio construction employers to almost open-ended liability if there is no overhead scaffold or netting constructed over the work area to protect workers on scaffolding down below from falling objects. This decision may also mean that workers employed on scissor lifts or other work platforms may also have the ability to make claims, if they are injured by falling objects, even if they are required to wear their hardhats. As such, this decision may represent a radical departure in safety requirements from those traditionally employed in the construction industry and therefore put contractors and subcontractors at significant legal risk.