By: J. Norman Stark, ATTORNEY, ARCHITECT EMERITUS (Oh) A.I.A., N.C.A.R.B.
KNOWLEDGE OF FACTS, whether actual, constructive, or imputed, are important distinctions affecting legal outcomes and decisions. Various legal interpretations and applications illustrate these important distinctions with a difference, especially in construction-related cases.
Understanding is essential in the application of facts with important differences, since they affect the ultimate outcome. For example, one legal definition provides: “…knowledge is fact gained through firsthand observation or experience.” Another definition adds: “knowledge includes skills acquired through education or experience to provide a theoretical or practical understanding of a subject.” One Court held that “Personal knowledge is knowledge of factual truth that does not depend on outside information or hearsay…”. Imputed knowledge defines: “A person who does not but should know, or has been aware of, the facts or has had knowledge.” Accordingly, knowledge may be either distinguished, actual, constructive, or imputed in the law.
A recent construction case is illustrative of the application of knowledge gained through communication. An Administrative Law Judge for OSHA – the Occupational Safety & Health Review Commission, vacated an OSHA violation and penalty previously imposed against a masonry contractor. The violation arose from an injury to an employee who was working at the bottom of an elevator shaft, and was struck by a concrete block which fell 14 stories. Fortunately, the employee had been wearing a helmet and suffered only spine injuries. The citation and penalty first issued against the employer was that the masonry contractor failed to establish a limited access (safety) zone prior to the construction of a masonry wall above the work area below.
The Administrative Law Judge’s opinion was that the masonry contractor was not aware that work was being performed on the 14th floor, above his work area. The OSHA Commission investigation confirmed a lack of communications at the worksite, and management lacked awareness of the safety lapse. In vacating the violation, the Judge determined that the Secretary of Labor (OSHA) failed to prove that the masonry contractor had neither actual nor constructive knowledge of the violative conduct and assessed no penalty.
Legal decisions are affected by knowledge; whether actual, constructive. or imputed. The distinction and differences of each of these forms of knowledge and information affect the outcome in any claim.
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