ROLES AND RESPONSIBILITIES
This article looks at the roles of major players involved in producing a shoring system, as well as their responsibilities. One way to do this is by looking at risk and litigation when something goes wrong. In the United States all industries are subject to litigation, this article looks at the four major parties that may be involved with a typical shoring installation (to varying responsibilities and risk): the contractor (which would also include the engineering provider for the project), the shoring supplier, the shoring manufacturer and OSHA. Litigation at its core is about responsibility. Throughout my career as an engineer and expert witness involved with this type of litigation the most common theme I have seen is a lack of understanding regarding who is responsible for what. In most lawsuits we see in last few years, the common practice in litigation is to name all parties in a lawsuit and haul them into court to sort out the ultimate responsibility. Through the course of my career, I’ve been led to the conclusion that if everyone involved clearly understood and focused on their responsibilities, accidents and the resulting financial impact of lawsuits could be reduced and in some cases, avoided.
Sources of litigation
Most shoring related litigation can be categorized into two subjects: accidents and lost productivity. Many in the industry believe most shoring related accidents are the result of poor planning, not performing a job hazard analysis before doing the work and or not following through with safety measures to mitigate those hazards. This falls into the category of “means and methods” and the contractor is directly responsible for developing them. Accident litigation is also particularly complicated because the workers compensation act in most states limits an employer’s responsibility, in most cases, to the limits of the workers compensation policy. The result is to attempt to hold others parties responsible to increase the financial award, even if the contractor was at fault. With respect to lost productivity, it’s important to note that the contractor has historically been found to be the only one responsible for developing the means and methods on a project.
Means and Methods
Means and methods are the key element that divides responsibility between the shoring manufacturer, shoring supplier, OSHA, and the Contractor.
Here is one definition that I found in a book by David J. Hatem and others, Subsurface Conditions, 1998 that applies here–
Means and methods- “sequences, techniques, and procedures of construction, as well as any associated safety precautions and programs, and all incidentals to temporary devices required to construct the project”
Performance Specifications and Prescriptive Specifications
In general OSHA Subpart P-Excavations is a performance specification. It describes the required outcome but in most cases does not tell the contractor exactly how to do it. It does list some things that must be done and specifies when it must be done like shoring after 5-ft deep, have a competent person inspect on a daily basis, etc. but the required outcome is specific, no injury to workers in excavation work. A prescriptive specification is like a recipe that tells exactly the ingredients to be used and how to mix them together, if you follow the formula for a loaf of bread it’s assumed that the outcome will be an edible loaf of bread. These two approaches lead to a critical question, “who is responsible for the outcome?” According to the recipe maker a bad loaf of bread can be blamed on anything from rotten eggs to baking the ingredients before trying to mix them. The baker can blame it on lousy specifications, “I followed the instructions and still had a bad outcome.” With the OSHA performance specification an injured worker is the fault of the contractor because he did not use adequate “means and methods” to prevent it. In both cases performance or prescriptive the term “means and methods” is critical to success. If the contractor is too limited by recipes or specifications he has no ability to control the outcome, and if the performance requirements are too vague the outcome is not certain.
Figure 1 is a diagram showing the relationship between the major producers of a safe shoring system and their divisions of responsibility
|Figure 1-Shoring Solution Input|
Responsibilities of the suppliers of the systemThe following is a listing of the major suppliers of the shoring system, what they provide to the contractor, and associated warrantees and potential risk that they must pay close attention to in order to avoid litigation.
Shoring Equipment Manufacturer-Develops and Manufactures Shoring Equipment
Manufacturers of shoring equipment produce shoring equipment and as a result they develop descriptive literature, structural performance data, installation procedures, and safety data. This information must be complete, accurate, and clearly stated. The information is performance based and intended to inform the contractor about how to develop safe efficient means and methods under his circumstances (project, available manpower and equipment) to construct the shoring system. The manufacturer effectively develops a template from which the contractor’s Competent Person should incorporate it into a project specific means and methods.
The following is a more complete list of what is provided:
- Provide product literature
- Application Guide
- Tabulated Data (structural limitations)
- Assembly instructions
- Installation sequence
- Identify safety issues
- Maintenance and repair
- May provide education and training related to the product
- Implied Warrantees to the end user (contractor) when equipment is selected, installed and used properly by the contractor’s Competent Person:
- Equipment will provide a productive shoring solution
- Safe to install – focus on and engineer safe solutions to hazards associated with assembly and installation
- Equipment will provide a safe working space for employees
Shoring Equipment Supplier-Provides shoring equipment to the contractor
A distinction that is often missed is that the shoring supplier is not a subcontractor; the supplier does no work on the project and when the project is over there should be no evidence that the supplier was there. The functions of the shoring equipment supplier are:
- Acquires, stores, maintains and delivers shoring equipment
- Markets shoring solutions
- Facilitates industry advancement and education
- May provide industry related safety training
- May provide industry related engineering
- May deliver and pick up equipment at contractor’s site
- Implied Warrantees to end user (contractor)
- Equipment package ordered and requested by contractor is complete
- Equipment is properly maintained and in good working order
- Product literature and tabulated data made available to contractor where applicable
- May provide potential protective system options and technologies available and explain general benefits of each system to the contractor, however, a shoring supplier does not determine the protective system used or the installation process for the specific jobsite, which must be done by the contractor and its Competent Person. Note that in some instances a registered professional engineer may help with system selection, in which case that responsibility is typically evidenced by a site specific plan for the project.
OSHA-Mandates excavation safety objectives and requirements
- Administers OSHA Subpart P-Excavations
- Definitions-Establishes basic language for promotion of safe practices, regulation, enforcement and litigation
- General Requirements-Performance requirements related to subsurface excavation work
- Specific Requirements –Performance requirements specific to worker protection in excavations (open cut and shoring)
- Soils identification
- Open cut and some shoring applications
- Implied Warrantees to end user (contractor)
- If there is an accident they will investigate the employer and hold them responsible
- They will issue citations to the employer when applicable
Responsibilities of the Contractor
The most important thing the contractor does here is to develop means and methods that are pertinent to the unique shoring system at hand.
Contractor-Installs and utilizes the shoring system for the purpose of providing worker safety and constructing the final work
- Decides on the shoring system to be used based on review of:
- manufacturers product literature
- shoring suppliers recommendations, cost and availability of shoring equipment – if applicable
- his available experience, manpower, and equipment
- Develops manpower
- Educated in general and excavation safety
- Trained and experienced in use of shoring systems
- Develops equipment necessary to install and utilize the shoring system
- Plans the work to be safely and productively performedAs can be seen by this listing there are many things that go into producing a safe productive shoring system and any one of them can go wrong. The purpose of this discussion is not to lay blame for failures but to help each person involved with the production focus and on his or hers particular responsibility to not overstep or assume someone else is going to be responsible for it. For those persons looking into the shoring industry, educators, regulators, lawyers, it lays out divisions of responsibility and standard practice within our industry.
About the Author: Joe Turner, P.E. serves as National Trench Safety’s Director of Engineering, Research and Product Development. Mr. Turner is one of the most recognized figures in the trench safety industry, having provided trench safety plans for the last 20 years. Among his many accomplishments, is the book Excavation Systems, Design, Planning and Safety, which was published by McGraw-Hill in 2008 and is still used today as a reference for many students and professionals regarding proper engineering techniques.
DISCLAIMER: the information contained in this article is provided for general and illustrative purposes only and is not to be considered Site Specific and or designated engineering for any project or work zone, nor is it to be used or consider to be tabulated data, technical data, advice and or counsel to be used on any jobsite. Each project is different and is the responsibility of the employer’s designated Competent Person to make decisions upon what systems and methods may be used in compliance with the federal and local regulations, manufactures tabulated data, engineered drawings and other plans. The ideas, concepts and or opinions expressed in this article are those of the author and not necessarily reflective of NTS’s position or view of a topic in all cases.