In May of 2023, the U.S. Attorney’s Office for the Southern District of New York announced the criminal sentencing of a New Jersey contractor and its principal stemming from a fatal violation of applicable OSHA regulations.

The case arose out of a construction project in upstate New York involving the construction of three buildings. A soil compaction plan called for the piling of large quantities of dirt “surcharges” where the buildings were to be located.

Although an engineering firm had designed a plan for the use of the surcharges, the defendant contractor and its principal failed to follow the plan. According to the U.S. Attorney’s Office, they instead “built a wall to hold back one of the surcharges, so workers could get started on the buildings next to it.” However, neither the contractor nor its principal “consult[ed] with any qualified person to see if the wall could withstand the weight to be placed on it by the surcharge.” This was a fatal error.

As the contractor continued to add dirt to the surcharge (including by driving machines on top of the surcharge), the surcharge pressed up against the wall. No warnings were provided to any of the people working near the wall. And even though the contractor and its principal heard reports that the wall was unsafe, “[t]hey did not fix the wall.”

Unfortunately, the wall collapsed, killing one of the workers who had unsuccessfully attempted to flee. The contractor and its principal pleaded guilty to willfully violating applicable OSHA regulations resulting in the death of a construction worker. The United States District Court for the Southern District of New Your sentenced the contractor to three years of probation and ordered payment of a $218,417.00 fine. The Court sentenced the contractor’s principal to three months in prison plus one year of supervised release.

The case underscores the purpose of health and safety requirements. Construction is an inherently dangerous business and the failure to follow applicable requirements can lead to irreversible consequences well beyond civil or criminal penalties. It is imperative that contractors follow applicable OSHA requirements, not only because it is legally required, but because it is the right thing to do to further the health and safety of workers.

When it comes to OSHA compliance, note that prior OSHA citations can lead to future “willful” citations, depending on the circumstances. The U.S. Attorney’s press release did not clearly identify the basis for the “willful” citation in this case.

It is also worth noting that the unfortunate result in this case likely could have been avoided if the contractor had simply followed the applicable project requirements and refrained from engaging in unauthorized design and construction. In this regard, Massachusetts recognizes the so-called Spearin Doctrine, which generally provides that the party furnishing a design for construction in the design-bid-build context impliedly warrants that the design is sufficient for its intended purpose. As a result, “if the contractor is bound to build according to plans and specifications prepared by the owner, the contractor will not be held responsible for the consequences of defects in the plans and specifications.” If the contractor believed that a retaining wall was necessary to enable construction, the contractor should have raised this issue for the owner and its design team to resolve.