Cranes are the quintessential "moving part" to construction sites. Look around any South Florida sky and you are likely to see cranes flying. This is a positive indication of ongoing construction and development. However, the use of cranes and other heavy hoisting equipment has resulted in several tragic accidents and fatalities. Especially in the South Florida geographical location where it is exposed to the onslaught of hurricanes and other weather events, the presence of cranes and other hoisting equipment can pose serious concerns of job site and public safety.

Those working on construction sites must abide by the Occupational Safety & Health Administration (OSHA) regulations and standards when operating cranes and hoisting equipment, see Section 29 C.F.R. 1926.550(a)(1)-(19). The OSHA regulations seek to ensure occupational safety by requiring compliance with either the manufacturer's specifications for erection, maintenance and operation of cranes and hoists or, if those are unavailable, compliance with the determinations of a qualified engineer. The OSHA regulations also require contractors to "designate a competent person who shall inspect all machinery and equipment prior to each use, and during use, to make sure it is in safe operating condition."

In 2012, the Florida legislature created Florida Statute 489.113(11) to prohibit any local act, law, ordinance or regulation, including, but not limited to, a local building code or building permit requirement, that is not already preempted by OSHA related to cranes and hoisting equipment.  The statute includes worksite regulations regarding hurricane preparedness and public safety following OSHA's standards for crane safety.

Notwithstanding, there have been local government efforts to regulate crane operations. In 2008, Miami-Dade County enacted Ordinance No. 8-34, called the crane safety ordinance, mandating safety regulations for crane installation, operation and inspection, including hurricane preparedness. Following enactment, several construction and crane industry associations sued the county, challenging the ordinance. The U.S. Court of Appeals for the Eleventh Circuit ruled that because the ordinance contained nonapproved occupational safety and health regulations conflicting with a federal standard, the enforcement of the ordinance was preempted.

Many in the construction industry would argue that OSHA's requirements are not tailored to the type of safety requirements needed in Florida in preparation of hurricanes. Under OSHA Section 1926.1433 the European Standard is followed, which requires erected cranes to sustain winds roughly equivalent to a category one hurricane, far below the hurricane force winds all too often experienced in Florida. For example, in 2017, Hurricane Irma's 120 mph winds took down three cranes in Miami-Dade and Broward counties, causing damage to construction sites and high-rise buildings nearby.

In September 2019, Hurricane Dorian threatened Florida with its category five-level winds. As a result, the governor temporarily waived the preemption requirement under Section 489.113 and allowed county officials to direct crane hurricane preparedness. This temporary offset of power sheds light on the need for stricter and more localized crane regulations. Directly following Hurricane Dorian, Senate Bill 272 was proposed, which aims to create an exception to Section 489.113's preemption language and to authorize local worksite regulation regarding hurricane preparedness. The bill is in its early stages, but could lead to localizing hurricane preparedness protocol.

Crane accidents can result in significant damages and can include, among other things, death, personal injury, property damage and the productivity loss associated with work stoppage during damage remediation. These risks expand beyond the construction site and may impact surrounding areas. It is therefore essential to have construction site protections in place, as well as carefully drafted contractual provisions and the procurement of appropriate insurance coverage.

When drafting construction contracts, it is important that the contract language require crane companies to comply with all governing safety regulations and also indemnify the developer and general contractor, among others as appropriate, from damages resulting from their obligations. Florida Statute Section 725.06 provides limitations on the enforceability of contractual terms whereby one party indemnifies another party against liability for damages to persons or property caused by any act, omission or default of the indemnitee arising from the contract or its performance. Careful negotiation of such risk-shifting terms is crucial when crane operations are at issue.

Additionally, crane companies should be required to provide liability insurance with sufficient limits to cover the potential consequential damages resulting from a crane accident. In order to maximize the protections provided, developers and contractors, among others, should be named as additional insureds to allow them to look directly to the crane company's insurance carrier for covered losses. Moreover, insureds should obtain an executed endorsement, not just an insurance certificate, to ensure coverage.

In order to avoid crane accidents, it is necessary to conduct proper construction planning and comply with safety standards. Safety is the primary concern but proper planning in advance of crane operations can work to mitigate and appropriately shift the risk of the damage when an accident occurs.

—Jessica Shevlin, a law clerk with the firm, assisted in the preparation of this article.

Melinda S. Gentile is a Florida board certified construction law attorney in the Miami office of Peckar & Abramson. Contact her at [email protected].