Once the operation reached the end of the designated street, it would turn around and back-up to the hopper on the placer machine. An MCC employee known as a chute man guided the Aggregate driver back to the placer where the driver could then lower the chute of the truck and unload concrete into the hopper. Upon completion of delivery, the chute man would notify that driver to pull forward and move over to the right to avoid the next truck in line.

A convoy of Aggregate trucks could be lined up to back up to the hopper. Besides the chute man, most of MCC’s employees worked behind the placer and paver, which acted as barrier between them and the incoming trucks. According to MCC’s superintendent, Arthur Cofell, the staging area for their operations as well as the employees’ cars were parked in a location where they would eventually end for the day. However, the Aggregate trucks entered and exited the worksite from this area. This layout also required MCC’s employees on occasion to walk in the area where the trucks would enter and exit. 

On Oct. 4, 2017, an Aggregate truck driven by Keith Nelson had finished unloading concrete and was directed by the chute man to move and make room for the next truck in line. Mr. Nelson proceeded to pull forward and to the right side of the gravel roadbed to avoid the next driver who was backing-up, and after traveling about 50 feet stopped the truck to pin-up his chute. At that point, he learned he had struck an MCC employee who sustained fractures to his legs. According to the injured employee, he had walked past the passenger side of Nelson’s truck with about four feet to seven feet of space between them. As the employee had passed the truck, the truck pulled forward and to the right striking him.

OSHA investigated the incident, conducting interviews and obtained documents and information. Although workers typically walked in the dirt field adjacent to the gravel roadbed to go back to the staging area, in this instance, they walked along the gravel because the dirt field was muddy (and thus put them in path of the trucks).

The Aggregate drivers were unaware that personnel would be walking through the roadbed area. OSHA issued a Citation against MCC for violating the “general duty clause,” which provides that an employer must furnish its employees with a place of employment free from recognized hazards that were causing or likely to cause death or serious injury given their exposure to strike-by hazards. The Citation noted among other feasible methods of abatement, the development of a comprehensive work site traffic control plan to address strike-by hazards for personnel.

MCC trained its employees on the struck-by hazards at annual seminars and at weekly toolbox talks. It also had policies governing collisions between heavy mobile equipment and pedestrians, including warnings and directives such as avoiding standing or walking in travel paths. However, MCC did not have “specific, documented rules” for personnel and truck traffic within a construction zone. Here, Aggregate drivers were only given basic instructions upon entering the worksite.

Moreover, Mr. Cofell had only discussed with Aggregate’s representative safe operating speeds within the worksite and where they should enter and turn around. Mr. Cofell testified at the hearing that he had never implemented an Internal Traffic Control Plan at any worksite.

MCC admitted that employees would occasionally cross into the truck’s area of operations, though infrequently. Mr. Cofell also admitted he instructed the injured employee to travel through the area to get a barrel of cure for their operations when he was struck by the truck.

The Administrative Law Judge affirmed the Citation against MCC as it failed to have a specific ITCP for this worksite. It also failed to implement plans to prevent operations where workers would be in the path of the truck convoy. Finally, it failed to coordinate its efforts with Aggregate by providing it with copies of its safety policies or including the drivers in daily safety briefings.

The Secretary’s expert identified multiple steps to address hazards on multi-employer worksites. These include performing a task hazard analysis and communicating the identified hazards to both employees and contractors. Other steps include developing plans separating pedestrians from heavy equipment and performing inspections to ensure compliance. It also called for maintaining close supervision of high-risk work and creating a written ITCP and develop truck-specific safety rules.

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