Doral Parking Garage Collapse is Case Study on How to Respond to Accidents
By now, you’ve seen all over the local and national news the reports about the unfortunate parking garage collapse at Miami-Dade College in Doral, a Miami suburb. As tragic as the accident is, it’s a case study for how to respond to similar accidents on construction sites. The knee-jerk reaction would be to dive in and start asking questions of everyone about everything without a cohesive investigative plan. But if you take one big step back and consider the consequences of that, you’ll see such a response is risky and potentially foolhardy. For instance, everyone’s immediate question is what caused the collapse. Although there could be numerous potential combinations of contributing factors, the two categories that will be most considered at the outset are defective design and/or defective construction. So what happens if the contractor starts investigating without a plan and everyone starts pointing the finger at faulty work by the construction crews of a subcontractor (purely hypothetical at this point for the purpose of our discussion)? In most cases, the contractor conducting the investigation will be liable for defective work by a subcontractor. Since I believe everyone expects this matter to ultimately end up in litigation, what happens if the project owner or a design professional sued for desing defects get their hands on the documents discovered or generated during the investigation that all implicate the subcontractor and correspondingly the contractor? The contractor’s investigation built the case against itself and left the results hanging out there for the owner or design professional to obtain in subsequent litigation. Bad planning dug a major hole for the contractor.
What should the contractor do to protect itself? The contractor should retain an attorney. Even if the attorney’s involvement won’t be intensive at this stage, having the attorney direct the investigation accomplishes a number of important things. First and foremost, it increases the chance that the results of the investigation (good, bad or indifferent) will be protected from disclosure to anybody else, as it would constitute attorney work product gathered in anticipation of litigation. The presence of a lawyer in the process is not necessarily required to protect investigation results from disclosure as work product, but it certainly increases the strength of that position should a third party later challenge whether the results are indeed work product. Second, a lawyer, who is trained in anticipating what lies in the future for the parties sorting through liability and damages issues, can develop a cohesive and strategic investigative plan that would be more focused, efficient and productive than simply interviewing everyone and their brother. Finally, everyone can anticipate OSHA (the Occupational Safety and Health Administration) to come investigating, carrying with them serious consequences for the safety violations that may have occurred on this job. Having a lawyer already involved will help you deal with the very uncomfortable review OSHA will conduct on the job and help mitigate your exposure to resulting penalties.
Tragedies like this are horrible. Nobody likes to hear about them. But sometimes, like now, they afford the opportunity for introspection and review of your own processes and systems. This is a reminder that something like this can happen to anyone, making it critically important to have a plan now for that possibility, rather than scramble frantically during a very sensitive time to develop one later. The latter course of action will likely carry significant and regrettable consequences.