Personal Injury-Construction Sites

Brien Roche

Owners and employers have a duty to keep the work site safe.  In most cases in Virginia a worker injured on a construction site cannot sue another party on that site.  However there are cases where that is not true. In order to decide if you can even sue the other party, you need to consult with a lawyer who knows this area of the law.

Workers in this area run the risk of severe injury.  Those injuries can come from falls, crane failure, collapse of a scaffold, cave-ins, electric injury, gas injuries and from many other sources. If you have a question for a lawyer about your construction site injury, contact us for assistance and advice.

Do you Deserve Compensation?

In order to claim money for injury beyond what workers’ compensation allows, you must be in a position to sue a third party.  That third party may be the person bringing things to the job site, the person who put things together to be dropped at the job site or the person who picks things up from the job site.

In the District of Columbia that rule is different.  In D.C. workers may be able to sue other workers at that same job site.  Also there are many rules, both at the state and U.S. levels, that may apply to your claim.  Therefore knowing exactly what those rules are is part of winning your case.

Personal Injury-Construction Sites and OSHA

The U.S. agency that is in charge of job site safety is known as OSHA.  OSHA may send their people to look at job sites and also to look at reports of injury at a job site.  Your attorney needs to obtain these reports.  In addition they may disclose the details of how the injury happened and who is in fact in control of the site.  Furthermore that control may be set by contracts between the parties working the job.  The issue of control is a big deal.  It governs who you will sue in regards to the injury.  Unless those roles are known, you cannot decide which way to go with your case.  The proper party to sue may be the owner.  However, it may be another contractor.  On the other hand, it may also be a party who manages the site.

Personal Injury-Construction Sites Where Control Is the Key

You have to obtain all permits for the project.  Those permits may state what law applies to the job site.  That law needs to be fully searched.  One U.S. rule that addresses the workplace is 29 CFR 1926 which deals with construction sites.

Also in the course of your suit you must gather all:

• contracts
• safety manuals
• safety plans
• minutes of safety meetings
• progress reports dealing with the job
• OSHA notices
• Photos showing the job in stages
• reports of injury
• diaries

and do the following:

• Make a FOIA request to OSHA.
• Decide who is in control of the job site.
•  Look at Section 414 of the Second Restatement of Torts and Section 424 as they may apply.
• Decide if the contract places a duty on any contractor to train workers and to oversee others.
• Obtain all papers dealing with what any party felt was the root cause of the injury.

Personal Injury-Construction Sites and the Direct Employer

Construction accident cases can result in a workers’ compensation claim.  You must obtain the entire file from that carrier.  That carrier may have done their own work to decide what happened.  In addition you may be able to get that carrier to join with you in the third party claim.  However that would be with the understanding that you will protect their lien.  Their lien arises by law.  The lien gives them the right to recoup what they have paid out.  In any sort of deal with the carrier, you need to clearly state what the rights and duties are of each party.

Construction accident litigation most often does not bring the direct employer in as a party to the suit.  The direct employer is immune.  However that may not be true is if the employer displayed an intent to injure.

Employer Charged By OSHA

In those cases where OSHA has cited the direct employer that means that then making a claim against some other party is now a bit tougher.  If that other party tries to claim that the plaintiff’s direct employer is at fault we will argue that should have no bearing upon whether or not the party that you are suing is in fact at fault. If you have a question for a lawyer about your construction site injury, contact us for assistance and advice.

In those cases where the direct employer has been charged by OSHA, there are things that can be done:

• The employer should be told to fight the notice.  It may be in their interest to do so.  Also their insurance carrier may provide counsel to them.
• The OSHA notice should be of little import because whether another party is at fault has no bearing on whether the party you have sued is in fact at fault. In other words there may be many causes for any event.
• On most job sites there are many employers.  Anyone who creates a safety hazard has to bear the cost of that breach.
• At trial we will ask the court to instruct the jury that the plaintiff cannot sue her employer.  The only case where fault of the employer has some bearing on the case is if that fault is the sole cause of the injury.

Personal Injury-Construction Sites and Rental Equipment

An article in the Trial Lawyers magazine reports 3,945 workplace deaths in 2012.  Twenty percent (20%) of them were construction accidents.

Many of the items used on job sites are rental items.  These items may fail.  These flaws may give rise to cases where the rental outfit must be sued.  In addition renting items to people who don’t know how to use them is dangerous.  These items that are being rented must be in good condition.  They must comply with basic safety rules.  Also they must be used in a safe fashion and they must be used by people who know how to use them.

Rental Equipment As Cause

Frequent causes of these types of injury are:

• Failing to provide the required safety devices.
• Failing to provide training.  If three to four hours of training is called for then it must be provided.
• If a precise type of training is called for then it must be provided.
• Also the background of the person using the machine must be checked to make sure that this person has the skills to use it.

Sometimes these items come with a person who can operate them.  If this operator is the one who causes the injury, then the rental outfit may claim that the two workers are co-workers. Therefore any claim is barred under the workers’ comp. law.  This issue is covered by the law of the state of the injury. If you have a question for a lawyer about your construction site injury, contact us for assistance and advice.

Things To Do

When dealing with rental items, you must obtain:

• Owner’s manual
• All other manuals
• Internal rules and practices of the rental firm
• Training that was provided
• The  level of training that the rental firm provides to its own people
• The overall skill level of those using the rental items.

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

Personal Injury-Construction Sites in D.C.

If the injury, whether it be a construction site or otherwise, occurred in D.C., then the Industrial Safety Act may apply.  That is D.C. Code § 32-801.  There are two benefits of this act. It imposes an actionable duty on the employers as further defined in Traudt v. Potomac Electric Power, 692 A.2d 1326, 1331-32 (D.C. 1997).  The second benefit is that it shields plaintiff from defenses of contributory negligence and assumption of risk.  Martin v. George Hyman, 395 A.2d 63 (D.C. 1978)

However the Martin case may be altered by Hale v. U.S. and also United Steelworkers v. Marshall, 647 F.2d 1189, 1235-1236 (1980) and Ries v. National Railroad Passenger Corp., 960 F.2d 1156 (3rd Cir. 1992)

However Hale is a federal case.  It is not binding in D.C. Superior Court.

Noteworthy that the editor’s note to D.C. Code § 32-808(a) incorrectly states that it has been repealed.  It has not been repealed because D.C. does not have an OSHA-approved state plan.

Construction Injuries-Product Liability

Another factor you must look at in regards to these claims is any potential product liability.  If the worker was harmed as a result of a defect in a hand tool, then that may be a product defect claim.  Those types of matters must be thoroughly reviewed.

Construction Injuries-Premises Liability

Finally, you must look at these cases from a premises point-of-view.  If the client is injured on the job site while dropping off items, you then must ask whether or not there is a defect in the premises.  Is there a hole that was hidden from view?  Is there a missing handrail on a set of stairs?  Those are all questions that must be reviewed.  Also see the blog post on this site dealing with personal injury new construction..  

Get what you are owed…
If you have a question for a lawyer about your construction site injury, contact us for assistance and advice.