Construction Accident Law: A Comprehensive Guide to Legal Liability and Insurance ClaimsAmerican Bar Association, 1999 - 726 pages Twenty years ago, there were 2500 lawyers in China, basically no legal system, and law schools and law libraries had either been closed or destroyed. It was one of the poorest countries in the world with an adult literacy rate of one-third. Today, illiteracy has dropped to below 10 per cent, consumption has more than doubled, and China has exploded as a major economic force in the global community, with the USA alone investing billions of dollars, aside from pursuing an increasing number of untapped markets. Now with more than 100,000 lawyers and mandated Rule of Law, China has enacted a multitude of new laws, regulations, and orders that must be understood if one wants to do any kind of foreign investment or trade in that country. This work is a guide to the complex laws of China. It opens with a survey of the historical development of China's contemporary legal system, and provides a summary of Chinese legislative and regulatory institutions and their functions. It also gives an overview of the judiciary and the many forces affecting China's evolving legal system. |
Contents
A INTRODUCTION | 2 |
Let us examine the relationship between duty and liability from | 3 |
plaintiff must still establish lack of due care | 5 |
The land possessor owes duties to two groups of people | 6 |
of its independent contractor this rule produced many harsh | 7 |
1 Liability for Actors Wrongful Conduct | 8 |
misnomer as there is nothing wrong or illegal in | 9 |
D THE RESTATEMENT OF THE LAW | 10 |
nia Labor Code 27505 and a six | 335 |
For our purposes there is no need to memorize | 336 |
noted most courts agree that the contractor is a | 337 |
The contractors immunity to a leased temporary employee should not | 338 |
surance fund⁹3seeking a right of reimbursement of the | 339 |
d Common Enterprise Immunity | 341 |
The Massachusetts Supreme Judicial Court had also adopted the com | 342 |
ered corrected These claims are rarely successful Many | 343 |
CHAPTER 2 | 12 |
I Introduction | 14 |
direct supervision and in conformance with the directions of either | 17 |
While the doctrine of superintendence might expose the general con | 21 |
property objectionably and with impunity merely by employing indepen | 23 |
Despite most American courts rejection of Bush v | 26 |
c Architects | 30 |
do a portion of the work according to their own | 32 |
industry seems to have been the catalyst for the development | 33 |
factor was whether the employer controlled the means or methods | 35 |
Finally no review of scholarly authorities from the first | 42 |
court a general contractor whose superintendent allowed various | 46 |
was so glaring and obvious that no reasonable contractor would | 47 |
These decisions presupposed a duty owed to third parties including | 48 |
Every employer shall furnish employment which shall be reason | 50 |
of the outside and ends thereof and properly attached | 51 |
CalOSH Act included repeal of the broad definition | 54 |
CHAPTER 3 | 55 |
A INTRODUCTION | 60 |
tant the Restatement of the Law of Torts | 61 |
B LIABILITY ARISING FROM A PREMISES DEFECT | 62 |
cealed dangers on the premises and to take precautions in | 63 |
a knows or by the exercise of | 65 |
with legal impunity allow the danger to remain uncorrected | 67 |
cii to fulfill any | 68 |
facie case must prove that the defect was latent | 69 |
existence of a duty of due care depends on whether | 70 |
6 That the condition of the property was a proxmiate | 72 |
1 The purpose for which the entrant entered the premises | 73 |
law of premises liability differs in significant practical ways | 74 |
of the land or structure there is no premises | 76 |
burden rests on the plaintiff to prove usually through | 77 |
Conversely the absence of similar accidents in the past | 79 |
On many construction projects there are a number | 80 |
when an owner turns over to the contractor only a | 81 |
in the company however they may be liable | 82 |
and outside the land by the dangerous character of the | 85 |
It was up in the beam It | 95 |
attention will be distracted 152 or if the | 97 |
assumption of the risk 166 However most statutes | 101 |
strength in the reasonable completion of that task he | 103 |
elbow in contact with a copper fitting and received a | 110 |
stance must be whether Tosco controlled the details of the | 113 |
principal potential premises liability Thus this | 114 |
the construction must be substantial in order to impose liability | 115 |
2 Missouri Law | 116 |
ployer he sued the plant owner under a theory | 117 |
3 Texas Law | 118 |
Under the second subcategorywhen the dangerous condition | 119 |
caused by equipment left lying around by other subcontractors | 121 |
supervised by the general contractor will implement or that the | 122 |
Second premises liability as imposed on owners extends to | 125 |
instance liabilities which arose from breach of the duties could | 126 |
There was also a showing that the general contractor | 129 |
for the work and so will in any case | 134 |
Regal Pale Brewing Company298 the supreme court explained | 135 |
trol323 negligent selection of the independent contractor | 139 |
the inherently dangerous work exception335 Beginning in the early 1980s | 141 |
number of states have ruled that the principal of an | 142 |
II Principals Liability Arising from Employment | 148 |
Although the contractor is obligated to perceive obvious defects | 149 |
5 The Retained Control Doctrine | 155 |
One who entrusts work to an independent contractor but | 156 |
spect a contractual disclaimer of owner responsibility for safety even | 163 |
injury on a treecutting project where there | 165 |
accordance with the plans and specifications but also to ensure | 167 |
against the defendants which it reduced by 25 percent | 168 |
constructive knowledge of the hazardous condition is frequently cited as | 169 |
the work others were doing was either not delegated | 170 |
formance with the plans and specifications will not be | 171 |
over the manner in which the contractors work was performed | 174 |
safety 503 When the subcontracting agreement is verbal | 180 |
For these reasons we reject the interpretation of section | 187 |
the work Section 416 titled Work | 189 |
reader unfamiliar with the law in this field Merely | 190 |
Prosser has shown this distinction to be ineffectual545 He concludes | 192 |
to drift toward a standard that would permit collateral negligence | 193 |
fall558 Indeed these courts may hold generally that the | 195 |
ing plans that were not prepared by a professional architect | 197 |
able 2 there was a substantial | 201 |
tion and insuranceprocurement clauses are presumably included | 203 |
There are three types of statutes and accompanying regulations that | 204 |
OSHA standard is negligence per se is inconsistent with the | 206 |
employers see Daniel E Feld Annotation Who | 208 |
2 OSHA Citation | 209 |
to admit the citation The citation issued six | 210 |
F DEFENSES TO LIABILITY | 211 |
extended to the principal is quid pro quo for its | 213 |
5 Unforeseeable Accidents | 215 |
contends that a defect in the design or construction of | 216 |
the owners acceptance of its work constituted an intervening and | 217 |
CHAPTER 4 | 218 |
A CONSTRUCTION MANAGERS | 220 |
2 Standard Form Contracts | 221 |
Construction Manager shall not be responsible for construction | 222 |
and the 566131 is that 565121 contains a guaranteed maximum | 223 |
Bechtels contract duties concerning safety defined rather than limited | 224 |
and disseminate the safety requirements applicable to the work | 226 |
cise coordination and control over the safety plans and activities | 227 |
The court ruled that the CM was liable under its | 228 |
Finally where the CMs employees assist a trade contractor | 229 |
2 Statutory Defenses | 231 |
laws could assert the tort defenses of contributory negligence | 232 |
of care is broader than its duty under a theory | 235 |
negligently is normally a question of fact for the jury71 | 236 |
subcontractor is the statutory employer of its subsubcontractor | 237 |
C MANUFACTURERS | 238 |
Products liability law is in flux because of the May | 239 |
the safe operation of the product In that regard | 240 |
A comprehensive discussion of products liability law is beyond the | 241 |
common in the industry the plaintiff was trained in | 242 |
The Texas Supreme Court affirmed a directed verdict for the | 247 |
In Coffey v Derby Steel Company Inc | 249 |
CHAPTER 5 | 250 |
A INTRODUCTION | 252 |
Conversely once an architect assumes a duty to the | 253 |
is not well articulated It may stem from the | 255 |
contractor is fuzzy at best Both design and erection | 258 |
However special discussion is warranted for a distinction drawn | 260 |
5 Keeping Things in Perspective | 261 |
Sources of Claims | 262 |
any safetyrelated comments to the contractor as the | 264 |
and the designs actual physical expression does not break the | 265 |
If Heery the engineer had originally specified a | 271 |
The cliff gave way and the truck plunged forty feet | 273 |
architect approved the shop drawing only for conformance with | 275 |
pose of checking for conformance with information given and the | 277 |
sibilities imposed on engineers by the statute it is inconceivable | 279 |
while under construction since a completed structure may conceal | 281 |
show the Contractor written authority He has authority to | 283 |
and will endeavor to guard the Owner against defects and | 285 |
architect The New York trial court provided a brief | 294 |
ployee was injured when a trench collapsed He sued | 305 |
consistently held that professional design firms were not subject to | 308 |
limits immunity to claims brought under the workers compensation | 309 |
2 Procedural Defenses | 311 |
b Review Panels | 314 |
CHAPTER | 317 |
3 Particular Parties | 319 |
A INTRODUCTION | 320 |
The ultimate social philosophy behind compensation liability is belief | 321 |
the injured party if they caused the injury or death | 324 |
that employer within the scope of the employers trade or | 327 |
is subject to tort liability even if the act | 328 |
statutory immunity The appellate court certified to the Florida | 329 |
However in Pogue v Oglethorpe Power Corporation | 330 |
agree that persons hired by the SUBCONTRACTOR or by the | 333 |
notwithstanding the uncontroverted fact that the subcontractors are indepen | 334 |
liability to a subcontractor that is twice removed from the | 345 |
ii Immunity Disallowed for Contractor | 349 |
hold that the contractor retains statutory employer status even if | 350 |
Let us add one final twist to 27505s fundamental | 359 |
partys liability is based on a finding of fault | 360 |
4 Noncontractual Indemnity | 361 |
liability to third parties the legislature and the governor | 362 |
199 Tucson Elec Power Co v Swengel | 363 |
CHAPTER 7 | 364 |
A INTRODUCTION | 368 |
ing unsafe conditions even if no injury has occurred | 369 |
B FEDERAL OCCUPATIONAL SAFETY | 370 |
as those pertaining to scaffolding38 However the construction standards | 374 |
are causing or likely to cause death or serious physical | 376 |
to determine whether the contractor had adequate notice of what | 378 |
that a reasonable person familiar with the size of the | 379 |
This theory of liability is called the multi | 382 |
b Industry Practice | 383 |
inspection warrant must be balanced against the possibility that the | 387 |
be inspected at least daily by a competent person before | 396 |
struction process necessarily requires it to know how each trade | 399 |
testthat is that the architect employer must | 401 |
standards and so was not under OSHA jurisdiction In | 402 |
that scheduling of work alone would be sufficient to bring | 409 |
clearly heralds the shift from job title to degree of | 411 |
CH2M an ALJ ruled that the CM was not | 416 |
2 State Plans | 417 |
2 Shall comply with the rules regulations | 418 |
D SAFE WORKPLACE STATUTES | 420 |
One who by statute or administrative regulation is under a | 422 |
The statute applies only to workers employed to | 426 |
not apply to a construction worker injured on a repair | 430 |
Any employer who willfully violates any standard rule | 432 |
sanctions for failing to comply with scaffold safety for painters | 435 |
soning that California corporations can form intent be | 437 |
Act been used to bring criminal charges against individual corporate | 438 |
In many states the definition of criminal negligence is | 442 |
CHAPTER 8 | 443 |
A INTRODUCTION | 446 |
matters23 or as a land possessor | 451 |
In light of this origin of noncontractual indemnity many | 454 |
noncontractual indemnity courts do not object to the parties | 455 |
Another issue is whether the contractors procurement of insurance pro | 457 |
centage of the damages caused by the indemnitor56 Other courts | 459 |
not independently prevent the indemnitee from enforcing an otherwise appli | 462 |
exempts from its application four other statutes including | 465 |
states are California83 Colorado84 Louisiana | 466 |
contractors who are directly responsible to such promisee or | 467 |
The antiindemnity statute was enacted in | 469 |
bility that ABCs employees may be injured and also | 477 |
from the employee to his employer and found no basis | 479 |
and contain no language limiting the subcontractors obligation to | 482 |
Indemnity agreements are not subject to any special | 486 |
nification of a negligent indemnitee But the court then | 487 |
enforcement of indemnity clauses that they do not place on | 488 |
afforded This requires an inquiry into the circumstances of | 493 |
4 Distinguishing Between Owner and Contractor as Indemnitee | 494 |
need for indemnification of the negligent owner 220 The | 496 |
lyze each premise under the two common law approaches contract | 497 |
b RestrictiveEnforcement Approach | 501 |
agreements and confronted with an indemnity clause containing a work | 502 |
The injuries to the subcontractors employees came within | 503 |
general contractor for any claims arising out of the | 504 |
CHAPTER 9 | 510 |
A INTRODUCTION | 515 |
surrounding circumstances to see whether any potential covered loss is | 516 |
tractor acquires general liability insurance for itself and the principal | 517 |
pre1973 policies However these earlier policies | 518 |
will be read in light of the objective reasonable | 519 |
Does that exclusion contain an applicable exception? | 521 |
statutes or workers compensation statutes A claim | 522 |
subcontractors employee the following persons are insureds | 523 |
c Damages because of bodily injury include | 524 |
that the bodily | 525 |
2 Discussion | 526 |
2 Assumed in a contract or agreement that | 528 |
Finally the definition of an insured contract | 531 |
capacity language excludes coverage should the employer be sued | 537 |
VII Pollution Exclusion | 538 |
b At or from any premises site | 539 |
Pollutants means any solid liquid gaseous | 540 |
i If the pollutants are brought on or | 541 |
hazardous contaminants such as asbestos which are released | 542 |
out of the insureds business operations and have generally limited | 543 |
tional insured to the contractors CGL policy The effect | 545 |
construction management malpractice as such liability is covered by | 546 |
2 Discussion | 547 |
to professional activities In contrast CG 22 80s | 549 |
Unfortunately 1997 CGL amendments made by ISO dropped the | 552 |
tion of liability in a contract or agreement This | 553 |
noncontractual indemnity but not for claims of contractual indemnity | 554 |
the named insured for owner Injury | 562 |
The effect of this new exclusion is to bar coverage | 563 |
tire term of a specific project Thus the | 565 |
3 Comparing Coverages Under Additional Insured Status | 567 |
a claim of premises liability166 or failure to warn motorists | 568 |
accident Form A and the OCP policy will not | 569 |
both Form A and OCP provide general contractors with conspicuously | 570 |
2 CNAs PMPL Form | 572 |
The court refused to permit Hartford through its control | 576 |
opportunity to influence either the prosecution or the defense of | 577 |
insured coverage204 are illustrated in Briseno v Chicago Union | 578 |
A principal may seek to back up the contractors indemnity | 582 |
Principals who tie the scope of insurance coverage to that | 583 |
believe that the contractor intended the insurance for | 588 |
5 bodily injury intentionally caused or aggravated by you | 590 |
workers compensation is covered under an employers liability | 592 |
Because a design professional may also incur liability that does | 593 |
Professional services involve discretion acquired by special train | 594 |
the shop drawings collapsed injuring two workers274 The | 595 |
the contract particularly Section VIII of the Required Contract | 596 |
Of course liability for a worksite accident may be | 598 |
Beginning in 1996 Insurance Services Office Inc | 599 |
accordance with the design of the project or the construction | 600 |
Appendix A | 601 |
2 A delay or failure by you or | 607 |
2 Exclusions | 610 |
If notice is mailed proof of mailing will be | 619 |
Appendix B | 625 |
1 Causing or contributing to the intoxication of | 627 |
2 Arising out of oral or written publication | 633 |
SECTION III LIMITS OF INSURANCE | 639 |
fire to premises while rented to you or temporarily occupied | 645 |
Appendix C | 650 |
Appendix E | 653 |
Appendix F | 655 |
Appendix G | 656 |
Appendix I | 659 |
COMMERCIAL GENERAL LIABILITY COVERAGE PART | 661 |
Appendix K | 662 |
COMMERCIAL GENERAL LIABILITY COVERAGE PART | 663 |
Appendix M | 664 |
Appendix N | 665 |
Appendix O | 666 |
Appendix Q | 668 |
TABLE OF CASES | 669 |
Bohannon v Joseph T Ryerson Son | 673 |
Colgrove v Smith 102 Cal 220 | 677 |
Dayton Beach Park No 1 Corp v National | 679 |
Fox v Contract Beverage Packers Inc 398 | 683 |
Joblon v Solow 91 NY2d 457 672 | 689 |
LTV Steel Co Inc v Northwest Engg | 693 |
Rogness v English Moss Jt Venturers 194 | 703 |
Secretary of Labor v Law Engg Inc 14 | 705 |
Sproles v Associated Brigham Contractors | 707 |
WalMart Stores Inc v Seale | 711 |
Common terms and phrases
5th Cir anti-indemnity statute apply architect Ariz Bechtel BNA OSHC bodily injury caused CGL policy CH2M claim common law compensation Constr construction accident construction workers contract contractor's employee Corp dangerous defendant denied design professional discussion duty duty of care Elec engineer exclusion hazardous condition hired immunity imposed indemnification indemnitee indemnity agreement indemnity clause independent contractor rule injured employee inspection Insurance Services Office insured's invitees jury JUSTIN SWEET liability arising liability insurance noncontractual indemnity operations OSH Act OSHA OSHRC owner parties patent defect performed plaintiff premises liability principal principal's property damage reasonable responsible RESTATEMENT SECOND retained control doctrine risk Rptr safe workplace statutes scaffold Secretary of Labor sole negligence standard standard form contracts STAT Steel strict liability subcontractor subcontractor's employee summary judgment supervision Supp Supreme Court theory tion tort tractor vicarious liability violation West worksite