When you hire a painter to paint your living room, or get your neighbor to help you build a shed on your property, whether you know it or not, you have just become an owner-builder who has inherited enormous risk as a contractor.
When an accident occurs, you may be astonished to find out that the legal process has put you in the cross-hairs of OSHA's jurisdiction. You are raw meat for plaintiff attorneys. Defense attorneys argue that OSHA does not apply because you are not an employee of anybody. Not true. OSHA is the standard of care in the industry. Most states agree with OSHA's interpretation that so long as the injured party had a valid reason for being at the workplace where the accident occurred, then he/she is entitled to full protection of OSHA's many statutes and regulations. That means that you as owner-builder failed to provide a safe place of employment, failed to supervise properly, failed to provide a competent person who should have recognized the hazard and take steps to mitigate.
On a recent case, a homeowner decided to build a small shed on his property. He made a verbal contract with his friend to work weekends as a helper. Everything went fine for the first few weekends; then his friend asked if he could work on the shed on his day off. This was a reasonable request, so the homeowner agreed. Around noon of the same day, a delivery was made to the helper. Since they knew each other, the man making the delivery asked if he could help. When the homeowner's wife came home from work, she was surprised to see someone she did not recognize working on the shed. She phoned her husband and asked if it was OK for another person to help their friend build the shed. Her husband advised her not to bother them, and let them work. The job was at the point where it was necessary to get on the roof to install rubber ice sheets. As the new man climbed the ladder, he asked: "Shouldn't there be a 2x4 nailed at the edge to protect against any one of us slipping?" The reply was "No it is a small roof, and not necessary." Five minutes later, the new man started slipping, and could not stop at the edge. He fell eight feet and was seriously injured. The litigation process took five years. The defense attorneys argued that the risk belonged to the man who fell, not the owner-builder or his helper.
On the contrary, the risk belongs to the owner-builder who acts as the contractor. The state of Florida makes it very clear in their publication titled "Property Owners Acting as Their Own Contractor" Reference is made to the disclosure statement which reads: "I understand that as an owner-builder I must provide direct on-site supervision". It further states: "I as owner-builder may be held liable and subject to serious financial risk if for any reason injuries are sustained by an unlicensed person or his employees while working on my property. My homeowner's insurance may not provide coverage for those injuries. I am willingly acting as owner-builder and am aware of the limits of my insurance coverage for injury to workers."
In another recent case, a homeowner contracted to paint a few walls with a local painter recommended by the father of the homeowner's wife. The living room wall was 20 feet from the ground. In discussing the job, the painter stated he would need a scaffold or scissors lift. The father agreed to help him, but ignored his request for either a scaffold or scissors lift. Instead, he provided a large extension ladder with the provision he would hold it when needed. When the time came to use the ladder for painting the high walls, it was late at night, and the father went home to sleep. The painter placed the ladder on a drop cloth which covered a polished wood floor. When the painter ascended to the top of the ladder, it began to slip. The painter rode the ladder to the floor and landed on his elbow; He was hospitalized and rendered seriously impaired. The homeowners claimed they had no knowledge of the risk and no responsibility whatsoever for the accident. On the contrary, once again they were deemed "owner builder", but failed to provide a competent person to supervise. Also as stated in Florida's disclosure statement: "I agree that as party legally and financially responsible for this proposed construction activity, I will abide by all applicable laws and requirements that govern owner-builders as well as employers."
The Florida disclosure statement further states: "I understand that I may not delegate the responsibility for supervising the work to a licensed contractor who is not licensed to perform the work being done. Any person working in my building who is not licensed must work under my direct supervision and must be employed by me, which means I must comply with laws requiring the withholding of federal income tax and social security contributions (FICA) and must provide workers compensation for the employee. I understand that my failure to follow these laws may be subject to serious financial risk."
Flordia's disclosure statement which is part of Florida Statutes Chapter 489 may not apply to your state; nevertheless, you need to be protected by an experienced expert when litigated.
Paul Gogulski, PE has used his broad range of experience to resolve hundreds of cases throughout the country and overseas. He has reduced the cost of litigation during the claims process through skills greatly refined during the course of his career. His recent pioneering in refinements to risk management has led to improvements in the use of BIM and system engineering applications within the construction industry. Dedicated to his profession, Mr. Gogulski is presently working with a professor at a major university and a president of an established consulting firm in the development of software to reduce risk by integrating 4D technology within clients project controls.
©Copyright - All Rights Reserved
DO NOT REPRODUCE WITHOUT WRITTEN PERMISSION BY AUTHOR.