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Construction Accident Cases

Fairfax Injury Lawyer Brien Roche Addresses Construction Accident Cases

Brien Roche

Construction accident cases involve a number of peculiarities.  The most significant one is identifying the proper defendants.  Those proper defendants may be the property owner, the general contractor, the subcontractor, the construction manager or the developer. 

One way to identify the responsible parties is to get all permits for the project from the local government agency. 

Once the potentially responsible parties have been identified, review 29 CFR 1910, which deals with general workplace requirements and also 29 CFR 1926, which deals with specific requirements for the construction industry.

As part of the discovery process in construction accident cases, it is critical that  you gather all contracts, all safety manuals, all safety plans for the project, all minutes of any construction safety meetings, all progress reports dealing with the job, any citations from OSHA, any photos showing the job site in various stages, any and all accident reports, and any and all diaries kept by superintendents or engineers  on the site.

Construction Accident Cases Frequently Involve the Direct Employer

Construction accident cases frequently involve an underlying worker’s compensation claim and therefore it will be important to obtain that entire file as the worker’s comp carrier may have done an exhaustive investigation.If you are representing the employee in the worker’s comp claim the carrier may be receptive to your overtures for assistance with the understanding you will protect their subrogation lien as to any recovery. It should be clarified with the carrier upfront what responsibility they may have in fronting any of the expenses of litigation.Those could well be substantial in terms of expert witness fees. 

Construction accident litigation typically involves a claim of an injured worker against the contractor on a job site who is not the Plaintiff’s direct employer. Most states have an absolute bar against claims against employers. Some states allow claims against the direct employer in circumstances where the employer’s conduct was intentional and the likelihood of injury was substantially certain.

In some instances however the claim against the non-employer entity is complicated by the fact that OSHA has cited the Plaintiff’s direct employer for some safety violation. Where that is the case, then the Defendant in this litigation may attempt to point to the empty chair and argue that the accident was in fact caused by the Plaintiff’s direct employer. Although the relevance of that contention may be questionable it may potentially be admissible on the issue of causation even if not admissible on the issue of negligence.

In those instances where the employer has been charged with an OSHA violation, there are certain things that can be done to combat that:

  •  The employer should be encouraged either through the efforts of counsel or through the efforts of their own worker’s compensation carrier to fight the citation. The employer has some interest in doing that in that the employer’s insurance carrier may seek to recover from the third party if in fact that claim has merit. The defense to be asserted by the employer may be based upon the concept that it was impossible to comply with the OSHA standard or in the alternative that compliance with the OSHA standard may have resulted in even greater hazards to the employees on the job site.
  • The OSHA citation itself is technically irrelevant since the existence of another cause for the injury neither proves nor disproves the issue of whether or not this defendant was in fact negligent and is therefore a cause of the injury. There may have been multiple causes but those other causes simply are not relevant to this defendant’s liability.
  • On most construction sites there are multiple employers. As such any employer who creates a safety hazard is liable under the OSHA statute regardless of whether the employees who were threatened were employees of that company or employees of some other company.
  • It may be a good idea to ask the court for a specific jury instruction telling the jury that the Plaintiff is barred from suing the direct employer.  The only instance wherein the employer’s negligence becomes relevant would be if the employer’s negligence was in fact the sole cause of the injury.

Things To Do

Several things that need to be accomplished as part of an investigation of any construction accident case are the following:

1.  Make a Freedom of Information Act (FOIA) Request to OSHA.

2.  Determine whether or not the general contractor has any control over the work at issue.  If so then Section 414 of the Second Restatement of Torts and Section 424 may have some application.

3.  Determining whether or not the contract imposes any general duty on the general contractor to train workers and otherwise supervise the subcontractors.

4.  Obtain all post incident documents wherein the general contractor and any involved parties may attempt to determine what is the root cause of the injury.

Construction Accidents Involving Rental Equipment

A recent article in the Trial Lawyers magazine reports of 3,945 workplace deaths in 2012, 20% of them were construction accidents.  The leading cause of such construction accident deaths are falls, being struck by objects, electrocution and finally being crushed between moving objects.

Much of the equipment used on construction sites is rental equipment.  This rental equipment can frequently fail.  Failing to provide equipment in proper condition and then renting it to unfamiliar operators can be catastrophic.

When a company rents equipment, it is required to rent it in the condition that the manufacturer specifies in the owner’s and operator’s manual or the service manual.

Frequent causes of these types of construction accidents are:

  • Failing to provide the manufacturer-specified safety devices.
  • Failing to provide sufficient operator training.  In some instances this training may consist of a three to four hour comprehensive program or simply consist of familiarization that takes 15 – 60 minutes.  Which type of training is appropriate depends upon the nature of the equipment.
  • Failing to check the customer qualifications to make sure that the equipment is being rented only to qualified operators.

Frequently this construction equipment comes with an operator.  In that instance where the operator injures an employee of the customer, frequently the renting company will claim that the injury was caused by a fellow employee and therefore may be barred by workers’ compensation.  That is an issue that can vary from state to state.

In Construction Accidents Rental Equipment Failure Must be Fully Explored

Some critical documents that need to be obtained in the course of investigating a case like this are such things as the owner’s and operator’s manual, the rental company’s internal standards and practices, any proof of training that was provided by the rental company, the level of training of the rental company’s own operators and the overall qualifications of the customer-approved operator.

For more information about construction accidents see the pages on Wikipedia.

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Construction Accident Cases

Fairfax Injury Lawyer Brien Roche Addresses Construction Accident Cases

Brien Roche

Construction accident cases involve a number of peculiarities.  The most significant one is identifying the proper defendants.  Those proper defendants may be the property owner, the general contractor, the subcontractor, the construction manager or the developer. 

One way to identify the responsible parties is to get all permits for the project from the local government agency. 

Once the potentially responsible parties have been identified, review 29 CFR 1910, which deals with general workplace requirements and also 29 CFR 1926, which deals with specific requirements for the construction industry.

As part of the discovery process in construction accident cases, it is critical that  you gather all contracts, all safety manuals, all safety plans for the project, all minutes of any construction safety meetings, all progress reports dealing with the job, any citations from OSHA, any photos showing the job site in various stages, any and all accident reports, and any and all diaries kept by superintendents or engineers  on the site.

Construction Accident Cases Frequently Involve the Direct Employer

Construction accident cases frequently involve an underlying worker’s compensation claim and therefore it will be important to obtain that entire file as the worker’s comp carrier may have done an exhaustive investigation.If you are representing the employee in the worker’s comp claim the carrier may be receptive to your overtures for assistance with the understanding you will protect their subrogation lien as to any recovery. It should be clarified with the carrier upfront what responsibility they may have in fronting any of the expenses of litigation.Those could well be substantial in terms of expert witness fees. 

Construction accident litigation typically involves a claim of an injured worker against the contractor on a job site who is not the Plaintiff’s direct employer. Most states have an absolute bar against claims against employers. Some states allow claims against the direct employer in circumstances where the employer’s conduct was intentional and the likelihood of injury was substantially certain.

In some instances however the claim against the non-employer entity is complicated by the fact that OSHA has cited the Plaintiff’s direct employer for some safety violation. Where that is the case, then the Defendant in this litigation may attempt to point to the empty chair and argue that the accident was in fact caused by the Plaintiff’s direct employer. Although the relevance of that contention may be questionable it may potentially be admissible on the issue of causation even if not admissible on the issue of negligence.

In those instances where the employer has been charged with an OSHA violation, there are certain things that can be done to combat that:

  •  The employer should be encouraged either through the efforts of counsel or through the efforts of their own worker’s compensation carrier to fight the citation. The employer has some interest in doing that in that the employer’s insurance carrier may seek to recover from the third party if in fact that claim has merit. The defense to be asserted by the employer may be based upon the concept that it was impossible to comply with the OSHA standard or in the alternative that compliance with the OSHA standard may have resulted in even greater hazards to the employees on the job site.
  • The OSHA citation itself is technically irrelevant since the existence of another cause for the injury neither proves nor disproves the issue of whether or not this defendant was in fact negligent and is therefore a cause of the injury. There may have been multiple causes but those other causes simply are not relevant to this defendant’s liability.
  • On most construction sites there are multiple employers. As such any employer who creates a safety hazard is liable under the OSHA statute regardless of whether the employees who were threatened were employees of that company or employees of some other company.
  • It may be a good idea to ask the court for a specific jury instruction telling the jury that the Plaintiff is barred from suing the direct employer.  The only instance wherein the employer’s negligence becomes relevant would be if the employer’s negligence was in fact the sole cause of the injury.

Things To Do

Several things that need to be accomplished as part of an investigation of any construction accident case are the following:

1.  Make a Freedom of Information Act (FOIA) Request to OSHA.

2.  Determine whether or not the general contractor has any control over the work at issue.  If so then Section 414 of the Second Restatement of Torts and Section 424 may have some application.

3.  Determining whether or not the contract imposes any general duty on the general contractor to train workers and otherwise supervise the subcontractors.

4.  Obtain all post incident documents wherein the general contractor and any involved parties may attempt to determine what is the root cause of the injury.

Construction Accidents Involving Rental Equipment

A recent article in the Trial Lawyers magazine reports of 3,945 workplace deaths in 2012, 20% of them were construction accidents.  The leading cause of such construction accident deaths are falls, being struck by objects, electrocution and finally being crushed between moving objects.

Much of the equipment used on construction sites is rental equipment.  This rental equipment can frequently fail.  Failing to provide equipment in proper condition and then renting it to unfamiliar operators can be catastrophic.

When a company rents equipment, it is required to rent it in the condition that the manufacturer specifies in the owner’s and operator’s manual or the service manual.

Frequent causes of these types of construction accidents are:

  • Failing to provide the manufacturer-specified safety devices.
  • Failing to provide sufficient operator training.  In some instances this training may consist of a three to four hour comprehensive program or simply consist of familiarization that takes 15 – 60 minutes.  Which type of training is appropriate depends upon the nature of the equipment.
  • Failing to check the customer qualifications to make sure that the equipment is being rented only to qualified operators.

Frequently this construction equipment comes with an operator.  In that instance where the operator injures an employee of the customer, frequently the renting company will claim that the injury was caused by a fellow employee and therefore may be barred by workers’ compensation.  That is an issue that can vary from state to state.

In Construction Accidents Rental Equipment Failure Must be Fully Explored

Some critical documents that need to be obtained in the course of investigating a case like this are such things as the owner’s and operator’s manual, the rental company’s internal standards and practices, any proof of training that was provided by the rental company, the level of training of the rental company’s own operators and the overall qualifications of the customer-approved operator.

For more information about construction accidents see the pages on Wikipedia.

Contact Us For A Free Consultation

Contact Us For A Free Consultation