Hurricane Harvey may have dissipated, his awful work complete, but no sooner did the vicious storm subside than his girlfriend Irma turned up to continue in his absence. My heart goes out to those suffering through the intense rains and flooding, the gale-force winds, and the cumulative threat to life and property. Sadly, the Gulf states have repeatedly been subject to the capricious nature of…well, nature.
Of course I first and foremost feel a deep compassion for the people affected by these storms, and wonder what might have been done to lessen the devastation. Some reports say that city engineers have repeatedly warned Houston’s leadership over the past few decades that taking no preventative action would more or less guarantee serious city-wide damage when inevitable disaster struck. I reckon Harvey’s aftermath is too dire for any of them to feel good about saying “I told you so,” no matter why their warnings went unheeded.
Here in Dallas I’m at something of a remove from the destruction Harvey wrought, but a healthy respect for–and caution around–nature is certainly on my mind as the details keep rolling in. A recent incident here in Dallas, while nowhere near the scale of the hurricane, reminded me all over again that we can’t afford to take nature for granted. Moreover, if it does ruin our endeavors, we most often cannot claim it was unforeseen.
Information’s a little lacking, but authorities from the Dallas Fire Department say that several workers were sent to the hospital with a range of injuries on Tuesday, Sept 5, after a scaffolding collapsed at a construction site near Baylor Hospital.
The workers allegedly attempted to put a tarp or screen around the scaffolding around 25-30 feet up. The placement of a tarp on temporary structures is fairly commonplace at construction sites to protect workers from crosswinds and falls. As they worked to place the tarp, however, the wind started to blow at speeds between 15 and 25 miles per hour, catching it like a ship’s sail and creating enough force to pull the structure over, as shown below.
For reference, the World Meteorological Organization (WMO) classifies wind speeds of 15-25 mph as a “Fresh to Strong Breeze.” By the time it’s blowing at 25 miles per hour it can push large tree branches around and makes a whistling sound. That probably doesn’t sound too bad to anyone not standing 20+ feet in the air on a metal skeleton, trying to spread out a sheet with a large wind-friendly surface area. To people in that exact situation though, it’s obviously more than enough.
In the aftermath of the accident 11 workers had to be taken for treatment. Three were critically injured while the other eight had non-life-threatening injuries. None of the workers have been identified at this time.
What Options Do the Injured Workers Have?
With few exceptions, accidents are caused by negligence on the part of one or more people. If any of that negligence is determined to be on their employer’s part, the workers who fell with the tumbling scaffold may be entitled to compensation for their injuries.
In most states they would likely file claims through their employer’s Workers’ Compensation insurance. Workers’ Comp guarantees a certain amount of pay and care for workers (with approved claims) without any need for litigation. By enrolling in the program, the employees forego their right to sue, but in exchange they’ll be (more or less) taken care of if they’re hurt on the job. This system has its drawbacks, but some workers are comfortable sacrificing a lawsuit’s possibility of greater compensation for the relative convenience and guaranteed recompense of Workers’ Comp.With few exceptions, accidents are caused by negligence on the part of one or more people.
The state of Texas is unique in the U.S. in that it allows employers to opt out of Workers’ Compensation. Should an employer–say, a business where on-site accidents are relatively few or minor–decide that it doesn’t want to participate, it can withdraw the company from the program via the Texas Department of Insurance. In so doing, however, the employer also acknowledges that employees are able to seek legal remedy in the event of a workplace injury. Compensation isn’t guaranteed if they sue for damages, but some might prefer a lawsuit’s chances of delivering payment above and beyond what Workers’ Comp (which operates on a strict compensation schedule) is able to provide.
Reputable construction firms are usually enrolled in Workers’ Comp due to the high statistical likelihood of worker injury. Even with tens of millions of dollars constantly sunk into OSHA compliance and on-site safety developments, workers are still often hurt on jobs with intense physical demands. It’s just an unfortunate byproduct of how we’re built that continuous labor wears a body out and makes it more prone to injury.
Even with that, though, there are certain ways of getting injured that Workers’ Comp doesn’t cover. It will not pay for injuries that:
- are intentional or self-inflicted;
- result from horseplay or voluntary drug or alcohol intoxication;
- are inflicted by someone for personal reasons unrelated to the job;
- result from voluntary participation in off-duty recreational, social, or sports events; or
- result from “acts of God” (like floods or hurricanes), unless the job has a high risk of such injuries.
In the above case of the scaffold collapse, no one could reasonably argue most of these points.
- No one could believe the workers intentionally placed the tarp so it would catch the wind and blow the whole scaffold over like so many Tinkertoys.
- There’s no evidential basis for thinking that any of them was drunk or fooling around 25 feet in the air.
- Personal grudges don’t really enter into this situation, as the wind knocked the scaffold over.
- “Tarp Attachment” would have to be a sport so obscure even ESPN 8, “The Ocho,” wouldn’t cover it. I think not.
As for acts of God, well…let’s talk a little more about that.
Not Every Natural Occurrence Qualifies as an Act of God.
It’s indisputable that a strong gust of wind is a natural event; depending on one’s metaphysical leanings, that may also imply that it’s an “act of God.” I won’t argue–I’ll only point out that the law’s definition of a viable “Act of God” defense may not jibe with some people’s feelings about His doings.The law's definition of a viable "Act of God" defense may not jibe with some people's feelings about His doings.
As it happens, the legal “Act of God” defense isn’t spelled out in the Texas Health and Safety Code primarily because the accepted definition already exists in the federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA):
[An Act of God is an] “unanticipated grave natural disaster or other natural phenomenon of an exceptional, inevitable, and irresistible character, the effects of which could not have been prevented, or avoided by the exercise of due care or foresight.”
42 U.S.C. §9601
Sounds about right. Given that definition, here’s the real problem with trying to apply that defense: few things are truly unforeseeable to the degree outlined above. I hate to invoke Harvey and Irma again, but if anything might unhesitatingly be called act of God, it’s a hurricane, so they make good examples. The devastation wrought by that gruesome twosome is astounding–again, depending on who’s talking, the word “biblical” might be used in describing it. Without downplaying the damage they caused, though, can we really call it “unforeseeable?” Houston’s built on a massive flat table of land, quite literally called a “flood plain,” and is no stranger to the issue. As I said at the start, it’s had plenty of warnings that its infrastructure wouldn’t be able to handle crisis-grade weather. Meteorological equipment watched the storm develop and helped everyone prepare the best they could–saving many lives, no doubt, but also negating anyone’s contention that the hurricane just “sprang out of nowhere” and started wrecking up the place. In fact, CERCLA pretty specifically shoots down the idea of successfully applying Act of God to a hurricane:
“…a major hurricane may be an ‘act of god,’ but in an area (and at a time), where a hurricane should not be unexpected, it would not qualify [as an] “Act of God”.”
If insurers and defense attorneys aren’t able to invoke the defense for a hurricane, certainly no scaffold-wrecking gust of wind merits the defense. “Oh,” they might say, “but it’s not the same thing! They had plenty of time to monitor and track the hurricane, but the wind just suddenly started blowing, you see.” Strong Winds: Acts of God and “Acts of God” How Might New Safety Equipment Affect Texas Work-Injury Law? The Legal Landscape Can Be Murky For Injured Cell Tower Workers What Elements Make a Commercial Loading Dock Dangerous? Law Professors Misunderstand Texas Work Injury Law
I agree that wind doesn’t show up with the same pomp and circumstance as a natural disaster, but its expected speed is still available in daily weather forecasts. In fact, on the day of this particular accident, the weather forecast specifically mentioned that the winds would shift from the north early in the afternoon and that they would likely be strong. That makes it a foreseeable risk, and precautions could have been taken on the job site. On a day with winds, the foreman should have told the crew not to put up the tarp (and probably to stay off of it as much as possible).
What’s the Takeaway Here?
It can be tempting to buy into the rhetoric that some accidents are simply unavoidable and nobody’s really to blame. In huge sweeping incidents like the hurricane, it’s easy to say that no identifiable party started it and therefore no one should really be held responsible. Even with the wind knocking down the scaffolding, the culprit’s not as obvious as if some careless fool had crashed an Escalade into it. That kind of thinking is what insurance companies and defense attorneys want. It’s a smoke screen to deflect their clients’ obligations to a party that doesn’t have to pay up. “My client doesn’t control the wind. You want a defendant? Take it up with God.”
The thing to remember is that other people come between the event and its victims. Harvey inadvertently shined a light on negligent city planning and (in some cases) subpar home construction in Houston; the high winds near Baylor only had its effect because crews were allowed to operate on a day completely unsuited to their task–even perhaps on a scaffold that was put up in a hurry or unsafely in the first place. Nobody can legally blame these very human preparatory failures on any deity, and I hope Tuesday’s injured workers keep that strongly in mind, whether they seek help through Workers’ Comp or through a trial by jury.