A high speed testing unit was used on the I-290 jobsite in Chicago.

In September 2011, Ames Engineering of Ames, Iowa conducted profile testing of three lanes of I-290 between Austin Blvd. and Sacramento Blvd. in both directions. Previously, in 2010, this section of roadway had both a Stone Matrix Asphalt (SMA) overlay and a Conventional Diamond Grinding (CDG) surface constructed. The profile testing was conducted to compare the SMA ride qualities to the CDG ride qualities.

In the summer of 2010, Project ACIM-290-4(118)091 was constructed between Austin Avenue and Sacramento Blvd. in both directions. The project, which extended for approximately 3.8 miles, consisted of overlaying three to four lanes of the existing plane jointed Portland Cement Concrete Pavement (PCCP) roadway in each direction with SMA from Austin Avenue to Kostner Avenue and from Homan Avenue to Sacramento Blvd. CDG was used to retexture the existing Continually Reinforced Concrete Pavement (CRCP) pavement between Kostner Avenue and Homan Avenue. A joint venture between Quality Saw and Seal, and Safety Grooving and Grinding, provided the diamond grinding in July of 2010.

In 2010, the project was evaluated for tire/pavement noise shortly after completion of the diamond grinding using an On Board Sound Intensity (OBSI) noise measurement device. The CDG and SMA surfaces were comparable in noise level with the CDG registering at 103.7 dBA and the SMA at 103.4 dBA.

The diamond grinding on this project received an award for its ride quality, which prompted the International Grooving & Grinding Association (IGGA) to conduct profile testing of both the SMA and CDG surfaces to enable a comparison of the ride characteristics. Ames Engineering was hired to conduct profile testing of the project.

Diamond grinding on I-290 in Chicago

Conducting Profile Testing

On Sept. 29, 2011, Ames Engineering conducted profile testing on I-290 between Austin Boulevard and Sacramento Avenue. Both the eastbound and westbound directions were tested to compare the smoothness levels of a diamond ground section to the SMA overlay, both of which were constructed during the summer of 2010 on a single IDOT construction project.

Testing was completed during a single night. The outside lanes were tested in both directions. The westbound testing was initiated at the Sacramento Avenue overpass and terminated at the new overlay terminus just east of the Austin Avenue overpass. The eastbound testing commenced at the Austin Avenue overpass and terminated at the Sacramento Avenue overpass.

I-290 varies between three lanes and four lanes in each direction; three lanes of which are continuous through the project. The fourth lane departs near Austin Avenue.

Specialized Equipment

The Ames Engineering profile van measured the profile in each wheel path simultaneously. Two RoLine sensors were mounted on a cross member which attaches to the front bumper. The RoLine sensors were positioned approximately 12 inches above the pavemet. The RoLine footprints were positioned 72 inches apart (center to center).

At the same time that profile measurements were obtained, still photos were taken at approximate 150 feet intervals allowing correlation between the profile results and a roadway image. The image was captured using a camera mounted to the windshield just below the rear view mirror. Both the images and profile data were linked to GPS coordinates.

“Ames tested with a state-of-the art wide band profiler, which is the most accurate method of testing,” said Scott Eilken, owner of Quality Saw & Seal. “It doesn’t get any better than that.”

Results

Concrete

The CDG surface had an overall average profile index (zero blanking band) of 20 inches/mile with a standard deviation of 3.9 inches/mile while the SMA exhibited an overall average of 23.1 inches/mile and a standard deviation of 6.3 inches/mile. While 90 percent of the CDG surface exhibited a profile index of 25 inches/mile or less, only 61% of the SMA surface achieved this. Additionally, while 100% of the CDG surface can meet a requirement of 30 inches/mile, 10% of the SMA surface would still exceed this limit.

Overall

The results indicate that the CDG surface was smoother than the SMA overlay by approximately 3 inches/mile and that the smoothness variability was approximately half that of the SMA surface. With the increased emphasis worldwide toward safe, smooth and low noise pavement surfaces, CDG has proven to be an economical and environmentally safe choice for today’s roadway specifiers. The traveling public and surrounding communities will notice the reduction in tire/pavement noise while the transportation authorities will benefit from the safe, smooth and lo

“This testing proves what this industry has known for a long time. A 20- to 25-year-old concrete pavement can be made smoother for less money using diamond grinding when compared to an asphalt overlay and avoids the never-ending cycle of milling and overlay brought on by covering a structurally sound section of concrete pavement,” said Eilken.

This article was contributed by John Roberts, executive director of the International Grooving and Grinding Association (IGGA).

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As you’ve waited for the economy to turn, your wheel loaders have aged, and now those machines are perhaps two generations behind what’s currently in dealer order books. Buying a low-hour used machine – if you can find one at a decent price – is always an option. But the improvements in the newest generation go beyond new paint. As one manufacturer says, “It’s an exciting time for wheel loaders.”

Here are some reasons it may be time to bite the bullet and step up to a new loader in the 4-to-<6 cubic yard reference bucket size:

Tier 4 Interim engine

You’ll pay a higher price for new loaders and the primary culprit is the engine. These engines generally require large diesel particulate filters, low-ash oil and ultra-low sulfur diesel (see sidebar). But they also come with advanced electronics that allow a host of refinements in air flow rate, fuel injection, combustion and aftertreatment functions. These, in turn, optimize performance, reduce emissions and fuel consumption and provide advanced diagnostic capability. (Note: some machines in this size category are still transitioning to Tier 4 Interim engines.)

“Today’s wheel loaders are burning 8 to 10 percent less fuel than seven years ago, which has been primarily achieved through electronic controls, drivetrains and hydraulics,” says Rob Marringa, brand marketing manager, Case Construction Equipment.

Idling also has gained attention in the past five years. Cat’s Engine Idle Management System, for example, kicks in when an operator applies a parking brake, reducing the idle rpm even further. The new JCB 457 has both a low idle feature and an engine shutdown mode, which starts after a pre-determined idle period.

Electronics

“With the powerful engine control modules, we were able to do a lot more integration with transmissions, axles, linkage, buckets, cabs, really the whole system,” says Cedric Gold, wheel loaders marketing consultant, Caterpillar. “Transmissions, for example, can be smaller with a torque-based logic, so the machine is always going to be in the right gear for an application.”

Loaders now have more capable telematics systems, and the Big Brother concerns of yesterday have evaporated, says John Chesterman, product marketing manager, four-wheel-drive loaders, John Deere. Using Deere’s Service Advisor Remote, for example, a dealer can remotely update a machine’s software.

The information is just so good on all sides – customer, manufacturer and dealer – that many manufacturers offer telematics as standard. “Generally, whatever the dash can read, Komtrax can convey,” says Armando Najera Jr, wheel loader product manager, Komatsu. For instance, the Komatsu WA 380-7 monitor now displays fuel consumption, information that wasn’t available in previous generations.

While contractors remain slow to integrate telematics into their office systems (see Why the disconnect? story on page 35), manufacturers continue to preach the benefits. Telematics, says Najera, allow you to monitor a host of inputs, including idle time, which in wheel loaders can reach 40 to 50 percent, depending on the application. “Think beyond fuel savings,” he advises. Monitoring and reducing idle time helps equipment last longer. “If you save 200 hours a year off your service meter reading, not only will it help you stretch the time between service intervals, it means that three to five years down the road you have a machine with lower hours and a higher resale value.”

Drivetrains

As the electronic sensors become more sophisticated, they program loaders to shift smoother, which translates to less wear on the drivetrain, says Najera. “Drivetrains still have the same basic components, but it’s how you manage it. It’s now a function of the hardware and the software. Because the machine has more sensors, we have more data. We know more about them and how to make them better.”

Manufacturers are using a number of automatic transmission variations.

The Case 1021F and 1121F models, for example, have hydro-mechanical transmissions, which Case says offers the advantages of hydrostatic drive, along with the durability of conventional mechanical transmission, adjusting the mix of power delivery depending on travel speed. The hydrostatic pumps and motors work at lower speeds, mix with mechanical gears at mid-range speeds and then converts to mechanical gears in the highest speed.

Volvo says its OptiShift technology reduces fuel consumption by 15 to 10 percent over standard drivetrain configurations. OptiShift, now standard in the L150G, uses the lock-up function during a larger part of the work cycle. When an operator wants to change direction, OptiShift senses the loader’s speed, direction and accelerator position and slows down the machine by applying the service brakes automatically. This results in faster loading cycles, reduced powertrain load, smoother direction changes and lower fuel consumption, according to the company.

Lock-up torque converters have become common. Deere says they’ve had strong acceptance since the company put them on its larger wheel loaders in 2008. “They help save fuel, especially in high speed applications in load and carry,” Chesterman says. “Plus there’s a big performance benefit in ramp climbing.”

Cat’s K series drivetrains have single clutch speed shifting. The machine senses torque going through the drivetrain and will put the machine in the right gear to match demands. “This is a big change from five to seven years ago,” says Gold. “A lot of operators like to manually shift, but auto shift offers a large fuel savings.”

Cabs

LCD monitors, rear-view cameras, and smoother controls top the improvements here. One example is Komatsu’s dash-7 cabs, which have a 7-inch LCD monitor panel with an easy-to- navigate menu system.

In-cab rear cameras are becoming common, assisting operators in seeing over the hood, which in some models became larger to allow room for emission reduction components. Loader controls are now electronic pilot control.

“Electrohydraulic controls have decreased in-cab hydraulic lines and increased cab space,” says Nick Tullo, product marketing specialist, Volvo Construction Equipment. Another benefit: seat-attached control units have replaced control towers. They also allow in-cab adjustments of boom and bucket detents, eliminating the need to manually adjust detents.

Cat’s 966K has low-effort electrohydraulic joystick steering system with a force-feedback feature that automatically increases joystick effort as ground speed increases. “This completely eliminates the need for a steering wheel,” says Gold. “Even though it’s an electrohydraulic system, it feels like it’s mechanically turning the machine left and right. The operator can have full control of the machine without the steering wheel.” Sensors on the lift and tilt functions allow operators to set the attachment position from inside the cab.

Hydraulics

Manufacturers now have on-demand load sensing hydraulics. “We also offer simultaneous lift and tilt, so there’s no priority of lift over tilt, and it allows smoother operation,” Gold says. Cat, for example, gives operators the ability to set the dump height, return to dig and work tool attack angle from inside the cab. “Let’s say you’re dumping to a 5-foot conveyor. This let’s you set the dump height to 7 feet, instead of all the way to 9 feet,” Gold says.

The IntelliDig system on Kawasaki’s new 85Z7 and 95Z7 balances rimpull and hydraulic force, metering out power, as the bucket moves into a pile.

Maintenance/serviceability

Manufacturers have increased cooling capacity, offering wider cooling fin spacing and auto-reversing fans to keep the radiator clean. Service intervals have been extended, says Deere’s Chesterman, compared to machines that debuted in the mid-2000s. Engine oil changes moved from 250 to 500 hours, and in-tank hydraulic fuel tank filtration allows more capacity, moving change intervals up to 4,000 hours.

On it’s K Series loaders, Cat improved on the electric and hydraulic service centers it first featured with its H Series. Grouping these centers allows faster maintenance and repair, Gold says.

Komatsu has added swing-out rear fenders and coolers to improve serviceability access to the engine and cooling components.

Stay tuned

Several new loaders are in the wings:

Deere’s 644K hybrid, introduced at ConExpo in 2011, will debut a production model later this year. The machine will feature an electric drive, with a single motor and generator, that allows the 6.8-liter engine to run at a constant 1,800 rpm engine speed, quickly generating full power. The constant engine speed also allows the hydraulic response to remain steady, instead of varying with engine speed. “This will help newer operators easily gain the crowd force needed to get a full bucket out of the pile,” says Chesterman.

The next machine in Komatsu’s lineup will be the 5- to 6.8- cubic yard WA470-7, which will have the same cab as the WA380-7, and is expected to be out later this year.

The Cat 966K XE, which debuted at Intermat in April, will reach North America by early next year. The XE, which Cat says can deliver up to 25 percent fuel efficiency improvement, uses a hydraulic variator instead of a torque converter for reduced heat generation under severe rimpull load. When under heavy loads, the continuously variable transmission consumes roughly half of the energy compared to a conventional transmission.

In the Interim …

The diesel particulate filter on Tier 4 Interim engines requires a regeneration – which removes soot from the filter. A number of manufacturers have made this a passive function, requiring no operator input. “When you go into auto regen, it pops up on the monitor screen, and then goes into regen automatically as long as you keep operating the machine,” says Deere’s John Chesterman. A complete DPF cleaning will be required around every 4,000 hours.

And if it’s not a convenient time for a regen – for instance, if you’re working in an area with a lot of airborne debris and you want to avoid the elevated exhaust temps – Chesterman says you can take it out of automatic mode, and do the regen at another time.

There will be an additional operational consideration as manufacturers move into Tier 4 Final. Several manufacturers have announced they will be changing from an exhaust gas recirculation to selective catalytic reduction emissions strategy, which requires the use of diesel emission fluid. Case is already using SCR for its Tier 4 Interim solution on its loaders, including the 1021F and 1121F. Doosan also chose SCR for its DL350. Since on-highway trucks have used DEF since 2007 (see article on page 45), the DEF infrastructure is largely in place, although it does mean your field trucks will need to carry an additional fluid.

Four factors affecting loader fuel efficiency

Instead of just monitoring fuel use, says Caterpillar’s Cedric Gold, consider a loader’s total fuel efficiency, or how much work you can squeeze out of each gallon. This can be affected by the following:

Machine application. If you’re doing load-and-carry work, consider how far the loader needs to go and what material – and gradation – is being moved.

Operator technique. Make sure your operators know all the capabilities of the machine, including auto shift. Become familiar with rolling resistance and its impact on productivity – the smoother and cleaner the operating floor, the faster an operator can go, with less up and down on the throttle, requiring less fuel.

Remember there’s a balance. Reducing idle time has become a mantra, but if there’s only one truck being loaded, why speed up the cycle just to quickly go back to idle? Just because a machine can load a truck in 22 seconds doesn’t mean you have to max out its capabilities if your job doesn’t require it.

Look at machine configuration. Gold cites Caterpillar’s Performance Series buckets as an example. Designed to reduce loading time, the buckets have an optimized shape and side curves to reduce friction while penetrating material.

Don’t forget the operator

John Chesterman with John Deere tells about a site visit where he saw a young operator speeding through his load cycles, barely getting a half-full bucket. “I just spent 15 minutes with him to show how to load the bucket,” he says. “His production went up 200 percent and he was a lot happier.” The experience prompts him to urge owners to remember one of the most critical components of loader productivity: the operator. “Mentor your new operators. Show them how to use all the features on a loader, including lock-up torque converters and ride control.”

ROUND UP -- iModels with 4-to-6-cubic-yards reference bucket capacity include:

Volvo L110/L120

Compared with previous models, Volvo’s L110G and L120G wheel loaders offer a 25 percent increase in lifting force, a 15 percent increase in breakout force and up to a 5 percent increase in fuel efficiency. Both loaders are powered by a Volvo six-cylinder, turbocharged, Tier 4 Interim V-ACT engine that provides 256 horsepower to the L110 and 268 horsepower to the L120G. The front axle is fitted with a hydraulically-operated differential lock that transfers 100 percent power to the wheels, reducing wheel spin and improving traction in soft or slippery conditions. Two stronger, variable displacement, load-bearing axial piston pumps allow higher working hydraulic pressures, enhanced control of the load and attachments, as well as higher breakout force, faster lifting and tilt functions.

Case 1021F/1121F

The 1021F and 1121F models are designed for quarry, aggregate and truck-loading applications. Case was the first manufacturer to use the selective catalyst reduction Tier 4 Interim emissions strategy on loaders. The 296-horsepower 1021F and 320-horsepower 1121F offer joystick steering, four selectable power modes and a rearview camera. The loaders are available with hydro-mechanical transmission, which adjusts the mix of power delivery based on travel speed and offers the advantages of hydrostatic drive with the durability of a conventional mechanical transmission.

Kawasaki 85Z7 and 90 Z7

Kawasaki’s new 85Z7 and 90Z7’s new body designs improve visibility from the cab. Features include Tier 4 Interim engines, new powertrain components and hydraulic and electrical systems. An Isuzu engine provides the 85Z7 with 221 horsepower while the 90Z7 has a 280-horsepower Hino engine. Use of variable displacement piston pumps in an open-centered, excavator-style hydraulic system saves on fuel and improves the overall feel and response of the hydraulic system. The “IntelliDig” system balances rimpull power and breakout force when digging tough materials. Both models have a high degree of operator customization, allowing the operator to set power settings, lift arm kickout settings, the declutch setting and how the transmission shifts.

Liebherr L550-IND

Liebherr’s L550-IND has a redesigned front linkage. With precise parallel movement over the entire lifting range, the L550 provides a clear view of the work area and produces a more equal amount of torque throughout the lifting cycle. Machine applications include pipe handling, small log handling, operations where a large light material bucket is necessary and utility operations where the use of forks is needed throughout the day. The L550-IND features the Liebherr hydrostatic driveline and is powered by the Liebherr D934S A6 four-cylinder diesel engine.

JCB 457

JCB has replaced its 456 wheel loader with the new 457, featuring a Tier 4 Interim, 8.9-liter Cummins engine. Delivering 250 horsepower to the 457, the engine’s Economy mode reduces engine output for lighter duties while saving up to 6 percent fuel. The engine incorporates a high-pressure common rail fuel injection system, exhaust gas recirculation and a variable geo-metry turbocharger. The 457 offers more loading capacity and a tipping point increased by 3.3 percent over the 456, resulting in an extra quarter of a ton of bucket capacity. The JCB Smooth Ride System can be activated at any speed, allowing operators to tailor it to individual site requirements.

Doosan DL350

Doosan has increased the horsepower of its DL350 to 271 with a five-cylinder, Tier 4 Interim engine that uses selective catalyst reduction technology to offer as much as 16 percent increased fuel efficiency over previous models. The DL350’s lift capabilities have been upgraded, giving operators the ability to set upper and lower limits for both the lift arm and bucket stop positions from inside the cab. The machine has a dump height of 10 feet and can be equipped with optional electric steering to decrease operator fatigue. A joystick has been added to the left armrest to allow operation without the steering wheel. A centralized monitor inside the cab displays engine rpm, coolant temperature, fuel level, machine warnings and other data.

Cat 966K

Caterpillar’s new 267-horsepower C9.3 ACERT engine powers its 966K wheel loader, which has a new operator station, electro-hydraulic steering with either joystick or steering wheel control, Cat Performance Series buckets and a more efficient drive train. The cab features a wider, front-hinged door along with left- and right-hand sliding windows, both of which can be opened and closed while seated. The machine can be equipped with the Cat Fusion coupler, specialty buckets, pallet forks, rakes, material handling arms and plows.

Hyundai HL770-9

Hyundai’s HL770-9 has a fuel-efficient, low-noise, Tier 3 Cummins QSB6.7 engine with three engine modes. The 277-horsepower engine is electronically controlled for optimum fuel to air ratio and clean and efficient combustion. Other features include a redesigned cab with standard automatic AC/heat, heated rear-view mirrors, hands-free phone, personal storage space and AM/FM radio with MP3 player ports. A 5.7-inch color monitor mounted on adjustable swivel-mounts allows easy machine control. The HL770-9 also comes standard with Hi-mate, Hyundai’s remote management system providing access to service and diagnostic information on the Internet.

Komatsu WA-380-7

Komatsu’s WA380-7’s 191-horsepower, Tier 4 Interim SAA6D107E-2 engine offers up to a 10-percent decrease in fuel consumption, compared to the WA380-6. SmartLoader Logic provides optimal engine torque for the job required and saves fuel by automatically decreasing engine torque when it’s not needed. Komatsu’s large capacity torque converter with lock-up comes standard, providing improved acceleration and hill-climb ability and a higher top speed, all with lower fuel consumption. In addition to a 7-inch display monitor, the loader comes with the Komtrax telematics system.

Deere 744K

Deere’s PowerTech 9.0-L IT4 Tier 4 Interim engine uses cooled exhaust gas recirculation technology to meet emissions standards while powering the 744K with the same 304 horsepower as Tier 3-equipped 744K. It features Deere’s Quad-Cool system with a multi-function color LCD monitor displaying onboard diagnostics. The NeverGrease pin joint option keeps joints tight longer, extending pin life and eliminating daily greasing.

LiuGong 856IV

LiuGong’s 856IV is powered by a 206-horsepower Tier 4 Interim Cummins engine for big load-carrying power that allows faster cycles on the jobsite. The 856IV comes standard with limited-slip front and rear differentials for better performance in difficult terrain.

About the author: Marcia Gruver Doyle is editorial director of Randall-Reilly’s Construction Media Division, of which Better Roads is a part.

Utility conflicts and relocation issues

In Florida Power & Light Company v. Russell Engineering, Inc., 2012 WL 3326341 (decided Aug. 15, 2012), a Florida court of appeals held that statutes governing an award of damages against a utility company regarding utility conflicts with road construction did not provide the contractor’s exclusive remedy. Instead, the contractor was allowed to also pursue the utility on a negligence theory. As a result, the court affirmed a judgment in the contractor’s favor, including an award for increased direct costs and delay damages.

This case arises from a road project in the Miami area. The county contracted with Miller Legg (Miller) to act as the county’s engineering and inspection consultant. Miller prepared the project plans. Russell Engineering (Russell) was the low bidder.

In July 2000, Russell and the county entered into a contract for the project. The plans required Russell to install a 24-inch reinforced concrete drainage pipe, at one point over an existing Florida Power & Light (FPL) utility duct bank that was buried at an intersection and encased in concrete.

On April 30, 1999, the county sent FPL a letter pursuant to Sections 337.403 and 337.404 of Florida statutes, requesting FPL to remove or relocate any conflicting utilities. The letter included preliminary plans. FPL never removed or relocated its duct bank.

Internally, FPL identified a potential problem regarding the drainage pipe and duct bank. An internal memo dated July 15, 1999 stated that a “soft dig” should be performed to verify the depth of the duct bank to ensure the drainage pipe could be constructed over the duct bank, as this would “save [FPL] a lot of headaches down the road.”

FPL did not verify the depth of the duct bank. Instead, FPL relied upon its own defective “plan and profile” drawing that showed an incorrect elevation for the duct bank. FPL submitted this incorrect drawing to Miller, who used the drawing to create the final plans. Based on this incorrect “plan and profile” drawing, Miller determined there was enough clearance for the drainage pipe.

On the same day as the FPL internal memo, July 15, 1999, FPL sent a letter to the county regarding potential problems with the plans and FPL’s utilities. This letter did not disclose any concerns with the drainage pipe and duct bank.

In April 2001, Russell began construction. Approximately mid-way through the project, Russell encountered the FPL duct bank, which was buried at an elevation higher than shown in the plans. As a result, Russell could not install the drainage pipe. Russell immediately notified Miller, who in turn, notified FPL of the problem.

Russell could not continue work due to the duct bank. FPL did not remove or relocate the duct bank. As a result, Miller re-designed the drainage pipe to go below the duct bank. The extra work associated with the re-design required Russell to spend approximately six weeks on the drainage pipe installation.

The work required for the re-designed drainage pipe caused Russell to incur significant increased costs. For example, Russell had to excavate deeper (to 13 feet instead of six feet), use sheet pile driven to at least 20 feet to keep the existing road from collapsing into the excavation, and employ more expensive water pumping. This extra work was not part of Russell’s contract.

The county notified FPL of its intent to seek reimbursement for all increased costs. Russell submitted a claim and settled with the county for $175,000.00 for its increased direct costs. In addition, the settlement included an assignment to Russell of the county’s rights against FPL, including for any delay damages.

Russell filed suit on its own behalf and as the County’s assignee. At trial, Russell prevailed against FPL under a negligence theory. Russell was awarded $175,000 in direct damages and $59,700 as delay damages.

FPL appealed, arguing that Sections 337.403 and 337.404 of the Florida statutes provide the exclusive remedy of requiring interfering utilities to be relocated or removed prior to awarding damages. FPL argued that because the county failed to pursue the statutory remedy, it should have prevailed. The appeals court disagreed, finding the statutes did not eliminate the common law right to recover damages for FPL’s negligence. In addition, the court analyzed the language of the statutes, including the language of Section 337.404 that provides “Whenever it shall become necessary for the authority to remove or relocate any utility . . .” Since the drainage line was re-routed under the duct bank, it was not “necessary . . . to remove or relocate” the duct bank. As a result, the court found the statutes inapplicable and ruled in favor of Russell.

This case is an example of the minefield of potential claims regarding utility (and subsurface) conditions on construction projects. Here, the contractor’s damages award against the utility was upheld on appeal. However, if the Florida statutes, or the contract, were worded differently, the contractor might have obtained a different result and been precluded from any recovery. As always, it is important to understand the terms and conditions of any contract and its risk allocation mechanisms, especially with respect to potential site utility conflicts and differing site conditions.

For a downloadable PDF of this article, click here. To view it in the Better Roads Digital Edition, click here.

About the author: Brian Morrow is a partner in Newmeyer & Dillion LLP, a law firm in California. He is a licensed California Civil Engineer, and specializes in the field of construction law, including road and heavy construction. Contact him at brian.morrow@ndlf.com.

For a state-by-state list of how the bridges in your state are doing and an analysis of the data, check out the Better Roads Annual Bridge Inventory (click on the link for a downloadable PDF). Look for our new report in the November 2012 print edition or website (www.betterroads.com) of Better Roads, or check out the full report plus additional charts and details in our digital edition (www.BetterRoads.com/digital).

LISTING OF U.S. BRIDGE FAILURES

(For a downloadable PDF of this list, click here.)

Jan. 1, 1980 to Dec. 31, 2009

1980 – 09 May: Sunshine Skyway Bridge Struck by Ship – St. Petersburg, FL

1981 – 17 July: Hyatt Regency Skyway Bridge Collapse – Kansas City, MO

1982 – 13 January: 14^th Street Bridge Collapse Struck by Airplane – Washington DC

1982 – 15 April:           Cline Avenue Bridge Collapse during Construction – East Chicago, IN

1983 – 28 June:            Mianus River Bridge Collapse Metal Fatigue – Greenwich, CT

1987 – 05 April:            Schoharie Creek Bridge Collapse River Bed Scour – Ft. Hunter, NY

1989 – 01 April:            Tennessee River Bridge Collapse Piling Failure – Memphis, TN

1989 – 17 October:            Cypress Viaduct Collapse in Earthquake – Oakland, CA

1989 – 17 October:            Oakland Bay Bridge Partial Collapse in Earthquake – San Francisco, CA

1989 – 28 October:            Pedestrian Bridge Collapse Overloaded – Heber Springs, AR

1990 – 24 April:           Lake Street Bridge Collapse During Construction – Minneapolis, MN

1990 – 25 November:           Lacey Murrow Bridge Sunk Due to Heavy Flooding – Seattle, WA

1993 – 28 May:          Claiborne Avenue Bridge Collapse Struck by Barge – New Orleans, LA

1993 – 22 September:           CSXT Bridge Collapsed Struck by Barge – Mobile, LA

1995 – 10 March:           I-5 Bridge Collapse Substructure Failure – Coalinga, CA

2000 – 13 December:           Hoan Bridge Partial Collapse Brittle Steel Fatigue – Milwaukee, WI

2001 – 15 September:           Queen Isabella Causeway Collapse Struck by Barge – South Padre Island, TX

2002 – 26 May:          I-40 Bridge Collapse Struck by Barge – Webbers Falls, OK

2003 – 26 March:          I-95 Bridge Collapse Traffic Crash Caused Fire – Bridgeport, CT

2003 – 06 July:            Wimer Covered Bridge Collapsed When Pickup Truck Crossed it – Oregon

2003 – 21 July:            Kinzua Bridge Collapse in Tornado – Kinza State Park, PA

2004 – 03 February:      Igor Memorial Bridge Collapse During Removal – Hartford, CT

2004 – 16 February:           Maumee River Bridge Collapsed During Construction – Toledo, OH

2006 – 15 September:          Cableway used for New Hoover Dam Bridge Collapses – Hoover Dam – NV

2007 – 01 August:          I-35 W Bridge Collapse During Repairs – Minneapolis, MN

2007 – 15 August:          Harp Road Bridge Collapse Overloaded – Oakville, WA

2008 – 29 April:           MacArthur Bridge Collapse Due to Traffic Crash Fire – Oakland, CA

2008 – 12 June:            CRANDIC Bridge Collapse in Flood – Cedar Rapids, IA

2008 – 12 December:          Oak Island Bridge Collapsed During Construction – Brunswick, NC

2009 – 15 July:            9 Mile Bridge Collapse Due to Traffic Crash Fire – Hazel Park, MI

2009 – 27 October:           I-80 Bridge Partial Collapse Due to Tension Rod Failure – Oakland, CA

31 AVERAGE ONE BRIDGE EVERY EIGHT MONTHS  (7.7419 Months)          

Jan. 1, 2010 to July 7, 2012

2010 – 19 January:           Southampton Road Bridge Collapses During Construction – Harford County, MD

2010 – 25 January:           Walnut Street Bridge Collapsed Due to Age – Harrisburg, PA

2010 – 30 April:          Texas 322 Bridge Collapsed When Struck by Truck – Longview, TX

2010 – 01 May:        Stream Bridge Collapses After Heavy Rains – Madison County, TN

2010 – 07 June:          Popo River Bridge Collapses Due to River Scour – Lander, WY

2010 – 15 June:           Naugatuck River Bridge Collapse During Construction – Norfolk, CT

2010 – 18 June:          Elkhorn River Bridge Collapsed Due to Scour – Norfolk, NE

2010 – 21 July:           Salt Creek Pedestrian Bridge Collapses Due to Age – Lincoln, ME

2010 – 18 September:          Brook Park Bridge Collapse During Construction – Brook Park, OH

2010 – 20 October:          Elk Creek Bridge Collapse During Repairs – Brewster, MN

2010 – 19 November:        Seneca River Bridge Collapses During Removal – Chicago, IL

2011 – 11 April:         Conway Bridge Collapse Due to Overload – Conway, AR

2011 – 25 April:         USH 169 Bridge Collapse During Construction – Ft. Dodge, IA

2011 – 28 June:          Bolton Road Bridge Collapsed When Struck by Truck – Atlanta, GA

2011 – 16 July:           Railroad Bridge Approach Collapsed Due To Flood – Fridley, MN

2011 – 31 July:           Hwy 70 Overpass Collapses While Under Construction – Oronville, CA

2011 – 13 August:        17^th Street Bridge Railing/Fence Collapsed onto roadway below – Atlanta, GA

2011 – 28 August:        Rockaway River Bridge Collapses Due to Flood – Morris County, NJ

2011 – 28 August:        Carrabassett River Bridge Collapsed – Flood, Scour – Carrabassett Valley, ME

2011 – 28 August:        Bracket Brook Bridge Collapsed Due to Flood – Carrabassett Valley, ME

2012 – 26 January:          Tennessee River Bridge Collapsed Struck by Barge – Eggner’s Ferry, KY

2012 – 19 February:         Sabo Pedestrian Bridge Cable Failure (Constructed 2007) – Minneapolis, MN

2012 – 22 June:         Devon Road Bridge Collapsed Due to Overload By Garbage Truck – Cinnaminson, NJ

2012 – 27 June:         USH 310 Bridge Collapsed Due to Scour – Nassau County, FL

2012 – 29 June:         Water Pipe Line Bridge (3 Lines) over River Collapsed Due to Age – Colts Neck, NJ

2012 – 05 July:          Railroad Bridge Collapsed onto Street Due to Heat Rails – Chicago, IL

2012 – 05 July:          Crane and Bridge Girder Collapsed During Girder Erection – Oshkosh, WI

27 AVERAGE ONE BRIDGE EVERY MONTH   (1.0322 months)

Timothy G. Galarnyk, CEO of Construction Risk Management, developed the list of the bridges named above.

Recycling has reached a new level for the transportation construction industry. The Public Works Department of the city of Bellingham, Wash., pushed the limits of recycled materials use with a street project that included 400 old toilets incorporated into concrete. The Public Works Department developed a specification using recycled aggregate, which allows for the use of recycled brick, concrete, tile, toilets, and other similar types of construction waste.

“We did it because it was the right thing — and it was fun,” Anthony Freeman, P.E., project engineer for Bellingham, tells Aggregates Manager. “We got to play mad scientist. I think it [this project] really speaks about local partnerships, though.”

Freeman said the city was actively looking at using recycled concrete on the sidewalks. “Now, we have a spec that allows the city to do that,” Freeman says. “We are not only using toilets, but looking into capturing a bigger waste stream. There is not a huge market for recycled concrete, but we are going to enhance the market for it.”

The Public Works Department of the city of Bellingham, Wash., pushed the limits of recycled materials use with a street project that included 400 old toilets incorporated into concrete.

The city’s recent work on a recycled concrete aggregate spec for flatwork (curb, gutter, sidewalk, and driveway) concrete served as the foundation for the creation of “Poticrete,” Freeman says. The new spec — and Poticrete — meet a goal to reduce the use of virgin materials and to improve the regional market for crushed concrete, he says.

When Freeman received a call in February 2011 from Sustainable Connections, a local non-profit with both waste-reduction and green-building initiatives, he was asked if the could find a place in a city project for 400 high-flow toilets from a federally funded housing retrofit project. The city worked with the retrofit contractor and Cowden Gravel and Ready Mix to collect and crush the porcelain, then mix the aggregate in a few different batches for testing, Freeman says.

Eventually Cowden determined the best mix included about 20 percent porcelain by volume, and the city set about incorporating 40 cubic yards of Poticrete into a street project, Freeman says. The final product met all requirements for sidewalks, driveways, and curb/gutter installations.

The city installed 2,100 square feet of Poticrete, along with a decorative band and educational plaque that provides public information on the city’s efforts to build more environmentally responsible public projects.

Although this type of project does decrease the need for virgin aggregate, it’s not going to economically hurt aggregates operations, Freeman says. “We’ll always need our local aggregate suppliers for high-strength virgin aggregate,” he says. “But for applications that don’t take extensive structural loads, why not use recycled concrete? It’s also a developing market that our aggregate and concrete suppliers can be part of.”

The Meador/Kansas/Ellis trail project, in Bellingham, Wash., includes an asphalt overlay, new sidewalks, new curb and gutter, landscaping, storm water management, and several regional sidewalk and trail connections. A key intersection of two trails and three sidewalks provided a showcase location. The city installed 2,100 square feet of Poticrete along with a decorative band and educational plaque that provides public information on the city’s efforts to work with local both to provide economic opportunity and to build more environmentally responsible public projects, Freeman says.

Currently, Whatcom County’s two regional solid waste management companies accept toilets for a small fee and provide them for future Poticrete installations. This use, along with other options for recycled aggregate, will help the city include more than 400 tons of recycled materials in concrete alone in street projects each year, Freeman points out.

“This is a situation where everyone wins,” he says. “This project and this use of toilets is an example of the strategic risks that public agencies need to take in this day and age to encourage local markets that support recycled materials and more sustainable road projects.”

This project received the first GreenRoads certification, according to Freeman.

Take Extra Care with the Fine Print

Liquidating agreements are enforceable when properly drafted

In a recent Colorado case that involved an airport runway reconstruction project and a drilling and blasting subcontractor’s claim for additional costs due to differing site conditions — R. E. Monks Construction Co., LLC v. Telluride Regional Airport Authority (May 2, 2012) — the court provided a roadmap for making “pass-through claims” against government entities.

It is worthwhile to understand “pass-through claims” because they are important in government contracting. A pass-through claim is a claim by a party who has suffered damages (typically a subcontractor), against a responsible party with whom it has no contract (typically a governmental entity, i.e., the owner/government), presented by an intervening party (typically the prime contractor) who has a contractual relationship with both. In this example, the claim from the subcontractor “passes-through” the prime contractor to the owner/government.

Generally, absent “privity of contract,” a subcontractor may not make a claim against or sue the government directly. “Privity of contract” simply means that parties are in a direct contractual relationship. Absent legal authority to the contrary, pass-through claims are not allowed due to subcontractors’ lack of privity of contract with the government. However, a body of law has developed in the federal contracting arena, and many states, allowing pass-through claims against the government if certain requirements are met.

In the federal contracting arena, the Severin doctrine, which developed from the case Severin v. United States, 99 Ct. Cl. 435 (1943), provides for pass-through claims against the federal government. In the Severin case, the court held a subcontractor could not recover against the government in a representative lawsuit if the prime contractor was not also liable to the subcontractor on the same claim. This means the prime contractor must be obligated to pay the subcontractor regardless of whether the subcontractor claim is ultimately paid by the government.

Over the past several decades, federal court decisions have modified the Severin doctrine to limit the harsh effects from its strict application. For example, the Severin doctrine does not bar a legal action against the government if the prime contractor and subcontractor enter into a “liquidating agreement.” A “liquidating agreement” is an agreement between the prime contractor and subcontractor which typically provides the subcontractor will release all claims it may have against the prime contractor in exchange for the prime contractor’s promise to pursue the subcontractor’s claims against the government. When properly drafted, liquidating agreements are enforceable. Liquidating agreements do not violate the Severin doctrine unless they completely and expressly release the prime contractor from liability to its subcontractor. In other words, a properly drafted liquidation agreement is a critical to ensuring that a pass-through claim will be upheld.

In the recent Colorado case, R. E. Monks Construction Co., LLC v. Telluride Regional Airport Authority, a general contractor, R. E. Monks Construction Company (Monks) executed a contract with the Telluride Regional Airport Authority (TRAA) for the project known as Runway 9-27 Reconstruction Phase II, Telluride Regional Airport, in April 2009. The project involved extensive drilling and blasting operations associated with the construction of an airport runway. Monks subcontracted the drilling and blasting operations to Fisher Sand and Gravel Co., doing business as Arizona Drilling & Blasting (AD&B).

Prior to the contract, TRAA hired Terracon to perform exploratory drillings. Monks alleged the borings were located in the area where drilling and blasting would occur, were done to determine whether groundwater could be expected, and reflected that groundwater should not be expected. As a result, Monks submitted a bid to TRAA of anticipated costs to perform “dry hole” blasting, and stated that if “wet hole” conditions were encountered on the project, extra costs would result.

In early April 2009, AD&B commenced drilling and blasting. Almost immediately, Monks and AD&B alleged they encountered significant levels of groundwater in areas that TRAA represented would be dry. TRAA was notified of the wet hole condition and was informed that extra costs would result due to a differing site condition. TRAA refused to pay for any extra costs.

In June 2011, Monks, on behalf of AD&B, filed suit against TRAA, seeking in excess of $874,676 in damages. Prior to filing suit, Monks and AD&B entered into a liquidation agreement, wherein Monks and AD&B agreed to resolve the resolve the wet hole blasting claim between Monks and AD&B. In the liquidation agreement, Monks granted AD&B the authority to pursue the wet hole blasting claim in the name of Monks. In addition, the liquidation agreement reserved all rights against TRAA.

TRAA requested the court dismiss the case, arguing the liquidation agreement was not enforceable because of the prohibition against assignments in the TRAA/Monks contract, and because any claim that Monks had against TRAA was extinguished as a result of AD&B releasing Monks from any liability to it. The court denied TRAA’s request to dismiss the case. The court disagreed that the liquidation agreement violated the TRAA/Monks contract prohibition against assignments. The court reasoned that if the liquidation agreement was an assignment of rights, any monies recovered would have to be paid directly by TRAA to AD&B. This was not the case.

TRAA also argued that under the Severin doctrine, Monks’ claim against TRAA was nullified as a result of AD&B releasing Monks from any liability. The court disagreed, finding the liquidation agreement between Monks and AD&B did not contain an “iron-bound” release. As a result, the court allowed Monk’s pass-through claim against TRAA to go forward.

The R. E. Monks Construction Co. case highlights the importance and complexity of understanding and properly drafting pass-through claims and liquidation agreements. The rules regarding pass-through claims, including time and procedural requirements, often vary between federal, state and local government jurisdictions. The failure to follow these requirements can be fatal to a pass-through claim (prior to the claim ever being considered on the merits). In order to properly preserve and assert their rights should a “pass-through claim” arise, prime contractors, subcontractors, material suppliers, sureties and their counsel should understand the differences and distinctions regarding “pass-through claims” in whatever jurisdictions they transact business.

Brian Morrow is a partner in Newmeyer & Dillion LLP, a law firm in California. He is a licensed California Civil Engineer, and specializes in the field of construction law, including road and heavy construction. Contact him at brian.morrow@ndlf.com

To ensure a pavement mix using recycled asphalt shingles (RAS) isn’t too soft, all mixes in Illinois must be tested with the Hamburg Wheel test. The test uses a 158-pound steel wheel, which is run under water. The specimen is put in a heated water bath and run back and forth 20,000 times

Recycled asphalt shingles, or RAS, are gaining popularity in recycled asphalt pavement (RAP) mixes as agencies, contractors go green to save green.

When Illinois decided to begin including RAS in the state’s recycled asphalt pavement RAP mixes back in 2010, it was already a late player in the RAS business. “Other states such as Wisconsin, Missouri, and Minnesota had already started to use the shingles,” Jay Behnke, owner and president of S.T.A.T.E. Testing, tells Better Roads. “The City of Chicago and the Illinois Tollway both had the desire to use the shingles, but no one was grinding them so you couldn’t get them.”

Once the first shingles in Illinois were obtained from Madison, Wis., to use for the Illinois Tollway and the Chicago Department of Transportation (CDOT), concern was raised about asbestos in RAS. Although production of shingles with asbestos stopped around 1972, IDOT noted that tearing off three layers of a roof presents the potential for asphalt shingles to contain asbestos.“IDOT also had a problem with bridge decks back in the 1980s,” Behnke explains. “They [asbestos] were used in the waterproof membrane system used to seal the deck.”

But the concern went beyond rooftops and bridge decks.IDOT and the U.S. Environmental Protection Agency (EPA) were also very concerned about incorporating asbestos testing when roads needed to be milled out. “Working with the [Illinois] Tollway, EPA and IDOT, they all came up with a rigorous testing protocol “that tested pretty much every truck that is coming in,” Behnke says. “The good news is that to date, IDOT, the Illinois Tollway Authority and the contractors have never found one hit of asbestos in any of the shingles in Illinois in the more than 10,000 samples tested. But the protocol is still in place.”

Even with this additional effort, Behnke says, use of RAS is still saving money. “It’s been determined that about $30 per ton is being saved,” he says. “The Tollway has seen savings in its stone-matrix asphalt (SMA).”

Michigan Avenue in Chicago, known as “The Magnificent Mile,” was repaved using recycled asphalt shingles (RAS) in the pavement mix. The project is known as “The Magnificent Green Mile”

From a contractor standpoint, Behnke says he thinks RAS is so successful in Illinois is because of the specification developed that the shingles must be ground very fine. “When you take tear off roof shingles and are done grinding and screening them, 100 percent must pass a 3/8-inch,” Behnke says. “I believe this puts Illinois on the cutting edge. Many other states must just be 1 inch or 5/8 inch, although some have gone to 1/2 inch. No one else is requiring 3/8 inch, but because it’s ground finder, the asphalt concrete (AC) is more readily used in a mix. If it is in big chunks in the AC, the bigger piece stays in those pieces and it’s not available to the hot mix itself. They don’t see the cost savings.”

Traditionally in Illinois, the base AC was PG64 -22, meaning the AC won’t crack unless it gets below -22 degrees C (-12 degrees F). “The concern with RAS is the AC when it’s made with shingles,” Behnke says. “A shingle AC is closer to a PG90 -10. It is better for the top end. The top number ensures the mix won’t rut. In the case of PG64, it won’t deform or rut as long as the temperature doesn’t get above 64 degrees C. But RAS is PG100 -10. It’s not as good on the lower end for thermal cracking.”

Instead of using PG64 -22, the state is now using a softer grade AC – a PG58 -28, or in some cases, PG46 -34, a very soft-grade liquid,” Behnke says. “We are allowing stiffness of the AC from the RAA and DRAP to make the top end higher, but we are building in resistance on the lower end for thermal cracking by using softer grade liquid on the virgin side of the aggregate.”

However, to ensure the mix isn’t too soft, all mixes in Illinois must be tested with the Hamburg Wheel test. Texas, as well as some other states, also uses this test. The Hamburg Wheel test is a 158-pound steel wheel, which is run under water. The specimen is put in a heated water bath and run back and forth 20,000 times. “If the mix isn’t stable, it just ruts up extremely quick,” Behnke explains. “Our requirement is 20,000 cycles, and [the mix] can’t exceed 1/2-inch rut depth. If it meets these requirements, we deem it acceptable.”

This was the first year of mandating the test in Illinois,Behnke notes, adding, “Let’s face it. Everyone wants to be green and save money. We are being very green and pushing the envelope, but we need to make sure the performance is there.”

(For “Using RAS: Recycled asphalt shingles are an acquired taste,” which includes interviews with John Christensen, technical marketing manager for MWV Specialty Chemicals, a division of MeadWestvaco Corp (MWV) and Steve Jackson, P.E., quality control manager of Missouri-based NB West, be sure to check out the July 2012 edition of Better Roads in print or at www.betterroads.com/digital.)

“The bottom line is this: well maintained equipment will operate more smoothly and efficiently on site, will break down much less, and the cost of ownership will be reduced by minimizing costly repairs,” says Bryan.

And while Byran’s note is a good reminder of how to remove items from storage, it’s actually a good reminder of how to place equipment into storage as well. Here’s a rundown of his tips.

• Equipment should be stored in a dry, dust-free environment.
• Inspect equipment for any dirt or debris missed in the last cleanup. 
• Remove anti-corrosion coating applied to the cylinder rods before being placed into storage.
• Remove covers on air intake hose and muffler, typically placed as part a long-term storage or winterization process.
• Change engine oil and filter, as well as gear oil in all assemblies
• Replace all fuel and hydraulic filters
• Top off all fluid levels: hydraulic oil, fuel, brake fluid, radiator fluid, washer wiper fluid, etc.

Now you’re ready to turn the ignition. After you do, be sure to let it warm up for 15 minutes before slowly engaging all hydraulic and drive functions and checking for leaks. Then, give the breaks a test, ensure all safety equipment is on board and you’re good to go.

Pit fall by indepdendent contractor may be liability for general contractor

In a recent California case involving the intersection of construction law, personal injury law and OSHA regulations — Tverberg v. Fillner Construction, Inc. (Jan. 26, 2012) — the court ruled a general contractor could delegate its obligation to comply with government safety regulations to a subcontractor’s independent contractor. However, the court also found the general contractor could potentially be held liable for its negligent exercise of affirmative retained control over safety conditions relating to the independent contractor’s work.

The facts of Tverberg are as follows. In 2006, Fillner was the general contractor on a project to expand a commercial fuel facility in Dixon, California. The project required construction of a metal canopy over some fuel pumping units. Fillner contracted with subcontractor Lane Supply, which delegated the work to subcontractor Perry Construction Company (Perry). Perry hired Tverberg — an independent contractor — as foreperson of Perry’s two-person crew to construct the canopy. Tverberg had more than 20 years’ experience in structural steel construction and held a state contractor’s license under the name of J.T. Construction, a sole proprietorship consisting exclusively of Tverberg. Fillner also hired subcontractor Alexander Concrete Company to erect eight “bollards” — concrete posts intended to prevent vehicles from colliding with the fuel dispensers.

On May 1, 2006, Tverberg’s first day on the job, Alexander Concrete had already dug eight holes for the bollard footings. Each hole was four feet wide and four feet deep. The holes, which were marked with stakes and safety ribbon, were next to the area where Tverberg was to erect the metal canopy. The bollards had no connection to the building of the metal canopy. In fact, Tverberg had never seen bollard holes at a canopy installation site. Tverberg asked Steve Richardson, Fillner’s lead man, to cover the holes with large metal plates that were on site. However, Richardson said he did not have the necessary equipment to install the plates that day. Richardson did have his crew use a tractor to flatten dirt that was piled around the holes. Tverberg removed three or four stakes that marked the edges of some of the bollard holes. The next day, with the bollard holes still uncovered, Tverberg began work on the metal canopy. He again asked Richardson to cover the holes, but Richardson did not cover them. A short while later, as Tverberg walked from his truck toward the canopy, he mis-stepped and fell into a bollard hole and was injured.

In July 2006, Tverberg filed a personal injury action against Fillner and Perry. Tverberg alleged causes of action for negligence and premises liability, and sought recovery for alleged physical and mental injuries and lost income.

The court evaluated two potential bases for liability of the general contractor, Fillner. First, the court examined the potential liability of Fillner under a theory of breach of a non-delegable duty. Tverberg argued Fillner was responsible for complying with Cal-OSHA safety requirements that all pits be barricaded or securely covered. However, in California, when a hirer delegates contracted work to an independent contractor, it also impliedly delegates its duty to provide a safe workplace to that contractor. In these circumstances, the hirer has no duty and the independent contractor may not recover from the hirer for his or her injuries. Here, Fillner delegated its obligation to comply with Cal–OSHA workplace regulations to Tverberg, and therefore, could not be held liable for Tverberg’s injuries.

General contractors need to act with deliberate caution to avoid a “mis-step” and assuming liability that might otherwise not be their responsibility.

Second, if a hirer entrusts work to an independent contractor, but retains control over safety conditions and then negligently exercises that control in a manner that affirmatively contributes to an employee’s injuries, the hirer is liable for those injuries based on its negligent exercise of that retained control. Because the hirer actively retains control, it has not properly delegated that authority to the independent contractor. However, a hirer is not liable to an independent contractor or their employee merely because it retains control over safety conditions. Liability depends on whether the hirer exercised that retained control in a manner that affirmatively contributed to the injuries.

Here, the court found that by ordering the holes to be created and requiring Tverberg to conduct unrelated work near them, Fillner’s conduct may have constituted a negligent exercise of its retained control that could have affirmatively contributed to Tverberg’s injuries. In addition, Fillner determined there was no need to cover or barricade the bollard holes. Fillner’s employee in charge of the jobsite testified he concluded the stakes and safety ribbon provided sufficient worker protection. As a result, the court found that Fillner might have affirmatively assumed the responsibility for the safety of the workers near the bollard holes, and discharged that responsibility in a negligent manner, resulting in Tverberg’s injuries. Finally, Fillner failed to cover the holes after Tverberg twice asked Fillner to do so. When Tverberg made his first request to cover the holes, Fillner’s representative stated the equipment required to cover the holes was not available. The court determined that a jury could conclude that Fillner agreed to cover the holes and then failed to meet this responsibility. Since the court concluded Fillner might be liable to Tverberg on a theory of affirmative retained control, the case was allowed to proceed toward trial against Fillner.

Although rules vary by jurisdiction, for general contractors and independent contractors, this case shows the importance of who retains and exercises affirmative control over compliance with job site safety requirements. In Tverberg, despite the fact the general contractor properly delegated its obligation to comply with Cal–OSHA regulations to an independent contractor; it was still potentially liable for the independent contractor’s injuries based on its affirmative retained control over safety conditions. Given the complexity of the modern construction site — including the myriad of OSHA safety regulations and the multitude of subcontractors, suppliers and independent contractors involved in the construction process — general contractors need to act with deliberate caution to avoid a “mis-step” and assuming liability that might otherwise not be their responsibility.

Brian Morrow is a partner in Newmeyer & Dillion LLP, a law firm in California. He is a licensed California Civil Engineer, and specializes in the field of construction law, including road and heavy construction. Contact him at brian.morrow@ndlf.com

For a Safety Watch “tear and share” on proper procedures for unloading a trailer, click here.