On April 10, 2019, the employee of a subcontractor fell to his death from the roof of a 12-story building in Brooklyn, New York. Why did this tragedy happen? In part, because there was no supervisor onsite.
While the failure to use fall PPE certainly contributed to the fatal incident, OSHA found that the general contractor’s lack of supervision over the worksite was also a major factor.
Even though the deceased worker was expressly told to stay off the roof, he and a co-worker who did have fall protection were left alone with no supervision to complete a project on a tight deadline.
Overlap between contractor, subcontractor, administrative service
General contractor Skyline Restoration was hired to perform masonry and roofing repair on and around the rooftop water tower of a 12-story building in Brooklyn, New York. One of the water tower’s four brick-veneer supporting columns was the focus of the repair work. The rooftop was about 130 feet above ground level.
Skyline subcontracted the job to Jaen Restoration, a company that was run by one person – the spouse of Skyline’s vice president – and that had no supervisors. This wasn’t the first time Skyline subcontracted a job to Jaen, and the general contractor was aware of this fact.
Despite Skyline’s policy that subcontractors had to supervise their own employees, the company offered to have its supervisors oversee the work Jaen’s employees were undertaking on the rooftop water tower. Likewise, the standard contract Skyline used for with Jaen and all subcontractors implied that the subcontractor would oversee its employees’ safety and would adhere to Skyline’s safety rules.
Skyline expected Jaen to finish the job in two days.
Administrative services at Skyline were provided by a company called Andromeda Advantage, which was affiliated with Skyline and shared office space with the general contractor. Andromeda also provided Skyline and other companies with worker training through its Andromeda Academy. Jaen’s employees were trained by Andromeda.
A project manager and two supervisors were assigned to oversee the rooftop water tower project. Jaen assigned two of its employees to the job, but there was never any communication between the Skyline project manager and Jaen’s owner.
Fall protection devices were supposed to be installed
The week before Jaen was to start work on the project, one of the supervisors went to the worksite to perform an inspection and see what would be needed for the job.
He found that all of the areas specified for repair were on and around the northwest column of the building’s rooftop water tower. The rooftop was flat and had unprotected edges.
A penthouse balcony was the immediate next lower level from the rooftop and was about 10 feet lower than the roof surface. The only way to reach the rooftop was via a fixed ladder extending up from this balcony. The edges of the penthouse balcony were protected by a parapet wall that was topped by a railing that provided sufficient protection from falling, so no fall protection was needed for work done from the balcony area.
The way the water tower was positioned on the rooftop meant that the masonry work specified in the contract would have to be done from a position on the rooftop surface.
To get to the water tower, the Jaen employees would have to climb the fixed ladder from the balcony, step onto the rooftop and then walk about 15 to 20 feet to reach the column. Using the fixed ladder would put the workers within 2 or 3 feet of the roof’s unprotected edge.
The Skyline supervisor determined that fall protection would be needed for the Jaen employees. In multiple telephone conversations with the other Skyline supervisor, the two men agreed that anchors for a fall arrest system would be installed on the roof along with a guardrail system. The supervisor who didn’t perform the inspection was responsible for installing these systems by April 8, 2019, the day before Jaen would be starting work.
Supervisor gave instructions then left the worksite
On April 9, 2019, the Skyline supervisor who performed the inspection picked up the two Jaen employees along with the materials they needed and drove them to the worksite. Once the Jaen employees unloaded the materials onto the sidewalk, the Skyline supervisor left and didn’t return until the end of the day. The Jaen employees moved the materials from the street level to the balcony and did some demolition work on the rooftop.
When the supervisor returned to the worksite to pick up the Jaen employees, he found that his fellow supervisor had failed to install the anchors or the guardrail system that they agreed were needed. However, one of the Jaen employees had a fall harness and the supervisor told him to be careful and to remember to tie off for the next day’s work. He also told the worker who didn’t have fall PPE to work from the balcony level and to stay off of the rooftop.
The supervisor didn’t take any action to have anchors or a guardrail system installed before work resumed. He failed to report the lack of fall protection to anyone at Skyline or Jaen.
The next day, the two Jaen employees returned to the worksite. Sometime after they began working, the employee who was told to stay on the balcony fell to his death.
Judge: General contractor should’ve anticipated unsafe behavior
OSHA cited both Skyline and Jaen for failing to provide fall protection on the worksite. Under the multi-employer worksite doctrine, Jaen was deemed the exposing employer and Skyline the controlling employer.
In court, Skyline argued that it wasn’t the controlling employer because it subcontracted the entire job to Jaen but an administrative law judge with the Occupational Safety and Health Review Commission disagreed. The judge ruled that Skyline was the controlling employer because it provided materials and assigned supervisors to oversee the work being done.
The judge said that Skyline should have anticipated that the employee without fall protection would go onto the rooftop because:
- there was little work to do from the balcony
- he and his co-worker were expected to finish the job in two days, and
- there were no supervisors onsite to prevent him from doing so.
Based on this and other findings, the judge upheld a $25,194 OSHA fine.
Bottom line: Proper supervision is required
Would the use of fall PPE have prevented this fatality? It certainly could have. Would the deceased employee have used the fall PPE if there was no supervisor present to ensure its use? The answer to that question is unknown.
However, if a supervisor had been present at the worksite to ensure safety rules were enforced, then the worker would likely still be alive. The supervisor would have, hopefully, prevented him from going onto the rooftop without fall protection.
There were a lot of things that were handled poorly leading up to this tragic incident, and the last two lines of defense that could have protected the deceased worker – a supervisor to enforce safety rules and proper PPE – were both completely absent.
If an employer wants a safe worksite, then proper supervision is required by personnel who know and follow the company’s safety rules and who feel empowered to enforce them.
