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Construction Safety

Construction Safety: Litigation Not Legislation

TJ Lyons | June 26, 2020

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Building skylight window

Over my years in construction safety, I always thought it would be a righteous thing to be an attorney because I often feel the most effective method for changing ingrained habits is change via litigation, not legislation. This is the first of two columns that I'm writing on who I would defend if I was an attorney.

David MacCollum was the gentleman who developed the roll bar on a bulldozer and became an expert in crane safety devices. He did this while raising a family and heading the American Society of Safety Professionals. We spoke often and visited, but not enough. Mr. MacCollum recently died, and I wanted to devote this column to him, a man I loved. He had a passion for protecting others and was a blunt, outspoken critic of those who could make things safer but looked more toward ways to make a profit than save a life.

He once recounted a case that he was preparing a defense for in court. A young newscaster was on the scene. Her foot was resting on the news van as it raised its state-of-the-art satellite dish—into the utility wires overhead. She was injured but survived.

I later relayed this incident to my son, Tim (he was then about 17), and I forgot about it. Later, at a fire drill with my local volunteer fire department, our neighboring rescue company pulled up to provide scene lighting. Tim was playing the "victim" in a farming accident scenario. He was supposedly unconscious with his head to one side. As we mock-treated him for chemical exposure, he suddenly leaped up and ran to the road, screaming, "STOP! STOP!" From his vantage point on the ground looking up, only he could see as the firefighters were raising the mast for their boom light directly into the overhead wires. My heart still races as I type this.

One would suspect every boom-equipped van now has an alarm to prevent such an electrical accident. But that would be an incorrect assumption; it's quite unlikely.

The Omission of Safety Devices

Want more examples? One only needs to look at the crane manufacturers' reactions when the installation of a safety device was advocated to keep loads from running into the sheave on the end of the mast "blocking" the load. The condition typically is created during a "boom out." The result is a dropped load as the wire rope fails, leaving broken workers below. This device stops the boom in time, eliminating the hazard. When the advocates for the device got the case in front of a judge, as Mr. MacCollum recounted, the judge dressed down the manufacturers' defense team's argument on just how effective this anti-two-block device was.

Harnischfeger's defense witnesses have invented the notion that the safety device needs to be as reliable as the function it protects. They then announce that it doesn't meet the standard they've created and is, therefore, no good. This test will not stand logical scrutiny. By that reasoning, if the boom-out function is 99.99 percent reliable, and the anti-two-block system is 99.99 percent, it would be left off.

Construction Safety Engineering Principles—Designing and Managing Safer Job Sites, David MacCollum, McGraw-Hill Construction Series (First Edition, 2007).

They were uncomfortable with a safety device that did not work correctly all of the time. The judge suggested that something that worked almost all of the time was better than a failure that would occur 100 percent of the time. The manufacturers lost, and anti-two-blocks are now found on cranes across the world.

I see things every day that should never be allowed; that frustrates me. Tradition, vanity, and a lack of care for those doing the work are often the contributors. Regulations written correctly so that they are practical and then followed will save lives, but litigation often drives that success.

One rainy night on the New York State Thruway near my house, I was driving our volunteer fire department rescue truck. I approached the car wreck, focusing on the tow truck driver since he was wearing a retro-reflective vest and coveralls. He was easy to see; however, the New York state trooper standing next to him was not, as he was wearing his traditional "grays" at night and in the rain. If I had killed him, I would have been charged, not the New York state police. But, if I was an attorney.…

Following are conditions and tools that we routinely use in the construction trade that often hurt, and sometimes kill, yet we shamelessly continue to allow their use.

Powder-Actuated Tools (PATs)

Years ago, a study determined that using these tools that drive fasteners powered by a bullet (seriously) can expose the user to levels of lead well above acceptable levels. I raised this concern with one firm I worked for, but they suspected the data and additional surveys were incomplete. With further research, finding the same results, their first reaction was to continue using the tools and allow the known exposure but make sure the workers were enrolled in a lead-prevention safety program involving blood testing. I still shake my head over this because lead-free shot was already available at that time, but it was more expensive. Prevention by simple intervention was possible but discounted. If I was an attorney.…


I am ashamed at the United States and our failure to implement this product. SawStop technology has been around for over a decade. This product uses simple electronics and physics. When the saw senses flesh, the blade stops. Fast. You get to keep your finger. Beginning in 2004 and most recently in 2017, National Public Radio (NPR) has broadcast stories on this, where you can hear the frustration of the developer. Lobbying efforts are blocking requiring these safeguards on table saws. You can find this technology in some schools and smarter contractors. Why the concern? This chart published in the NPR story cited above highlights the frequency of these horrific and avoidable injuries.

Estimated Table Saw Blade-Contact Amputations bar graph from 2005 to 2015

On a personal note, to add a bit of a theme to this column, I was once asked to join a group of executives to provide three things that could help them drop their construction incident injury rates. As I nervously stood in front of these business leaders, I stated that going to a "Ladders Last" policy on their projects, instilling the philosophy of "Nothing Hits the Ground" on every site to stop trips and falls, and using only table saws with SawStop technology would eliminate hand amputations for their finishing crews. I was asked by one in the crowd, "TJ, just how effective is this technology?" I replied that I had been advocating these saws for a few years and was friends with the developer. "He used to publish how many hands and fingers were saved from his invention, but he stopped counting at 3,000." The reply, "Well, yes, but there is the one time it won't work." If I was an attorney….

Electrical Panels

Here's another story. I was on a call with the Department of Something as someone was recounting a safety incident where a technician was badly burned in an electrical arc. His job had been planned for off-hours on a Saturday, but when he opened the panel to clean the bus bar, he discovered that it was energized and was badly burned. The accident investigation centered on his potential fatigue and his lack of training.

I spoke up and mentioned that I could not open my dishwasher if it was ON and would it not be clever to put a light outside of any panel to show it was energized? The storyteller said that was an interesting idea, but we must consider they had over 1,500 panels on their site. There was a pause, and another national lab on the call noted that they had installed such warning lights in all of their panels a few years earlier. There was a longer pause. If I was an attorney….


The failure of our industry to install skylights that you cannot fall through is another embarrassment. Sons and daughters are routinely killed by stepping on one of these, often hidden under the snow. Some look like a great place to sit for a weary roofer. They do make skylights in the United States that will hold the weight of a person, but we just don't require them. When I do become an attorney, you will find me at

Telehandlers/Telescopic Forklifts

I need to finish this column with one more sad story—a personal one. In our industry, we allow a fork truck to operate on a construction site, yet the driver cannot see to the right when the boom is lowered. Seriously. One of my best friends, John Hanson, beat cancer at 81. I bought him his first beer afterward at Jackson Old Chatham restaurant; it was a Genesee. Mr. Hanson owned a concrete testing company and was always angry, and I loved him as a friend.

Blue Telehandler forklift

One day in Williamstown, Massachusetts, he was walking on the "blind side" of a telehandler like the one shown in the photo. The operator, of course, could not see Mr. Hanson and turned to the right, crushing the life from him. New designs eliminate this blind spot. The blame for killing my friend was directed to the operator, but if I had been his attorney, I would have helped that operator with his case.

My next column will complete my list, but here's a challenge for my readers. Have you seen a similar failure of equipment in the field? If so, please send it to me at [email protected], along with an explanation. I promise to pay attention to your particular concern. And, should this attorney goal of mine work out, I can look a bit wider than my experience to help some good people continue to live, safely.

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