which had served as supports for the footbridge. Wildcat was sent a set of documents including the scope of work and the “as-builts.” Wildcat’s owner, Mr. Miller, reviewed these documents and also sent out two estimators to the site.

Wildcat was ultimately awarded the job. Prior to commencing the work, Mr. Miller visited the site on Sept., 16, 2020, and inspected the structures to be demolished and took videos of the site conditions. The following day, Mr. Miller returned with Mr. Nywening, the project manager, both performing a visual inspection of the footbridge and concrete supporting walls to develop a demolition plan. The plan used the “score, break and remove” method, which involves scoring or cutting partially through the concrete in grid patterns and then breaking it with a sledgehammer (or other machine) for removal. The plan was memorialized in scope in a work document.

On Sept. 24, 2020, Wildcat sent a three-man crew comprised of a foreman, Mr. Norton and two laborers who had performed various jobs that included concrete cutting and operating machinery. Wildcat also sent to the project a demolition robot, a booming forklift and mini-track loader. The project manager met with the foreman and reviewed the scope of work and then over a course of three days, the crew began and completed the removal of the wooden footbridge. The project manager visited the site twice a day and noted his visits in daily reports.

On Sept. 28, 2020, the crew began demolishing the first concrete wall without issue. On the following day, the crew began to remove the debris from the concrete wall and as planned, they would proceed to demo the second wall. The project manager had appeared that morning but then left the site. The crew began cutting the second wall. The foreman was in the parking lot moving the forklift while one of the laborers was cutting the bottom of the wall, and the other laborer watched the power lines. As the laborer continued cutting the bottom of the wall, the foreman saw that the wall began to tip and called-out, but the wall fell on the laborer and, tragically, he would succumb to his injuries.

Following this incident, an OSHA Compliance Officers inspected the site, took photographs and measurements and interviewed the foreman and laborer from Wildcat’s crew and subsequently issued a citation. The first item of the citation alleged that “an engineering survey was not performed by a competent person to determine the conditions of the walls and the possibility of unplanned collapse…a competent person did not perform and document in writing an engineering survey of 6’ x 10’ cement walls to determine their condition…” The Secretary (of Labor) contended that to the extent Wildcat performed an engineering survey it was inadequate and did not consider the possibility of an unplanned collapse, as it was noted in Wildcat’s scope of work sheet that no shoring was necessary.

The appropriate safety standard provides that “prior to permitting employees to start demolition operations, an engineering survey shall be made, by a competent person, of the structure to determine the condition of the framing, floors and walls, and the possibility of unplanned collapse of any portion of the structure…The employer shall have in writing evidence that such survey has been performed.” The Administrative Law Judge (“ALJ”) in this matter found that nowhere in the standard or its source standard (ANSI A10.6-1969) was the term “engineering survey” actually defined and thereafter looked at how the OSHA’s Review Commission, and other judges have addressed the standard’s requirements. The commission in Ed Miller Sons Inc. No. 934 (OSHRC July 31, 1974) found that the demolition’s company vice president, who was experienced in demolition, had inspected the structure at issue twice. He developed a sequence for the work, memorialized his plan and confirmed that he had in fact conducted the inspections in a signed memorandum, which all together constituted adequate compliance to the safety standards.

Here, the ALJ found that Wildcat’s actions mirrored those in Miller that had been found adequate. Mr. Miller had received and reviewed the set of documents that included the “as built drawings,” which gave him the height, size and thickness of the concrete walls, the psi of the concrete used and the steel embedment of the walls. He had visually inspected the structures, took videos, and confirmed that the structures were consistent with the drawings and that no shoring or bracing was required. It was determined that the most effective method for demolition was to “score, break and remove.” Mr. Miller believed that this method would keep the wall stable until it was brought down by equipment—and how he had used this method “thousand of times.”

Further, the ALJ noted how Mr. Miller returned to the site on the following day, conducted further visual inspections of the footbridge and concrete walls, and together with project manager, agreed on a plan to demolish the structures. These plans were memorialized in a scope of work document, which included details of the project, how Wildcat intended to complete the job, equipment to be used, the site conditions and overall means and methods as well as how shoring was not needed. Moreover, Mr. Miller and the project manager communicated the scope of work with the crew and the project manager memorialized his visits in daily reports.

The Secretary provided an expert who testified that Wildcat’s engineering survey did not meet the requirements of the safety standard because it did not note the hazards on the site and did not contain a plan for using protective measures and, therefore, showed that Wildcat did not consider the possibility of an unplanned collapse. The ALJ disagreed and found that all of Mr. Miller’s steps were in fact adequate to conduct an adequate engineering survey, and he vacated this item of the citation.

About the author: Costas Cyprus is an associate attorney practicing construction law and commercial litigation with Welby, Brady & Greenblatt, LLP, in White Plains, NY. He can be reached at 914-428-2100 and at [email protected]. The articles in this series do not constitute legal advice and are intended for general guidance only.