11 May CONSTRUCTION INJURY? YOU HAVE MORE OPTIONS THAN YOU REALIZE!

Your company has been hired to perform construction work on a building.  While you are working, you fall and injure yourself; or maybe, something fell on you.  You assume Worker’s Compensation will take care of your loss.  You realize that the compensation award just isn’t enough to keep you afloat, and your ability to earn a living for the rest of your life is impaired.  Can anything else be done?  Call us and find out!

Labor Law § 240 (1)

New York State Labor Law § 240 (1), commonly referred to as the “Scaffold Law,” was designed to prevent accidents where a scaffold, hoist, stay, ladder or other protective equipment failed to keep a worker from being harmed by the force of gravity to an object or person.

The purpose of this law is to protect workers by placing the ultimate responsibility for safety practices on property owners and contractors, instead of the workers themselves.

Property owners and general contractors have a responsibility to protect workers from the risks associated with elevated work sites.  This responsibility cannot be delegated to anyone else; the owner of the property will still be responsible for an injured worker even if the work was performed by an independent contractor whom the owner did not supervise or control.

The worker must demonstrate that he or she was injured because he or she was not provided with adequate protection against the risks arising from a significant height differential.  Even if the injured worker is partially responsible for his or her injuries, the owner and contractor will still be held responsible if the injuries were partially caused by a failure to provide the worker with this adequate protection.

The main burden that an owner or contractor would have to satisfy in these types of cases requires him or her to establish that there was no violation of this law; the protections provided to the injured worker were adequate.  He or she would also have to establish that the worker was injured solely due to his or her own fault.

A claim under this law may fail if an injured worker alleges that certain safety devices were not provided, but the evidence establishes that those devices were readily available at the work site, and the worker knew he or she was expected to use them, but failed to without any good reason for doing so.

For example, if you are performing construction work on the roof of a building, and you are not provided with any harnesses, nets, or other fall protection equipment, then you may bring a lawsuit against the property owner or contractor for injuries sustained when you fell from the roof.

Labor Law § 200

New York State Labor Law § 200 encompasses the common-law responsibility of a landowner, a general contractor, and their agents, to maintain a safe workplace.  These types of cases generally fall into two categories: (i) cases where workers were injured due to a dangerous or defective condition at a work site, and (ii) cases involving the manner in which the work was actually performed.

With respect to the first category of cases, if an owner or general contractor exercised some “supervisory control” over the work performed when the dangerous or defective condition arose from the equipment or negligent acts of a subcontractor, then he or she may be held responsible for any resulting injuries.

What is “supervisory control?” 

If someone has the authority to supervise or control the work being performed, then he or she bears the responsibility for the manner in which the work is actually performed.  It is not necessary to demonstrate that the landowner or contractor actually exercised this supervisory control when the injuries were caused by a dangerous condition at the property.

If someone has a responsibility under this law, and a reasonable inspection would have revealed the dangerous condition, then the failure to perform such an inspection makes the responsible individual negligent, responsible for any injures that resulted from that dangerous condition.  If a defective condition is visible, apparent and exists for a sufficient length of time to allow a landowner, contractor, or employee to discover it, then he or she may be charged with having notice of that condition.

For example, if you are hired to perform construction work and there is a build up of ice or snow on a scaffold, you may be able to hold the property owner or contractor liable for any injuries you sustained after slipping on the ice or snow.  You will also have to demonstrate that the owner or contractor knew or should have known about this ice/snow condition.

With respect to the second category of cases, when the actual work practices are unsafe and those unsafe practices cause the worker’s injury, then the property owner or contractor may be held responsible for injuries sustained when he or she had control over the “means and methods” of the work being performed that caused the injury.  Did the owner or contractor direct or control the work being performed?  Did either have the authority to order any unsafe work practices be stopped?

For example, imagine that you are installing a new water heater in the basement of a building and, at the same time, an elevator repair is being performed.  The elevator worker releases a cable and the elevator car plummets into the basement, causing part of the ceiling to fall onto the individual working on the water heater.  You may hold the property owner or contractor liable if he or she controlled the elevator worker’s methods and had the authority to stop the elevator worker from any unsafe practices.

Labor Law § 241 (6)

New York State Labor Law § 241 (6) gives landowners and contractors a responsibility to provide reasonable and adequate protection and safety to anyone, including employees, who are lawfully frequenting all areas where construction, excavation or demolition work is being performed.  There is also a responsibility for landowners and contractors to comply with any safety rules and regulations issued by the New York State Department of Labor (the “Industrial Code”).

An injured worker does not need to show that the landowner or contractor exercised any supervisory control over the worksite.  A violation of an explicit provision of the Industrial Code during a construction project is evidence of negligence.

For example, if work is being performed from rungs higher than ten (10) feet above the ladder footing, then the Industrial Code requires that mechanical means be used for securing the upper end of the ladder and the lower end must have safety footing, be held in place by a person, or secured to an anchor (12 NYCRR 23-1.21).

If you were performing construction work 12 feet above the footing of a leaning ladder and the ladder was not mechanically secured at the top, then the landowner or contractor may be responsible for any injuries you sustained when the ladder fell.  This would be a clear cut case of a violation of the Industrial Code being used as evidence of negligence for a Labor Law § 241 (6) claim.

Common Lawsuits Separate From Worker’s Compensation Actions:

• Failure To Provide Safety Equipment
•  Falling Objects
• Dangerous Chemical Accidents
• Electrocutions
• Ladder Accidents
• Construction Slip And Falls
• Falls Into Holes or Pits
• Scaffold Accidents
• Dangerous Machine Accidents
• Broken / Unsafe Equipment

WHAT SHOULD YOU DO WHEN INJURED AT A CONSTRUCTION SITE? 

Make sure that any incident reports are accurate and complete.  It’s a great idea to write on any incident report that all video surveillance at the premises should be preserved.

Take photographs of the site and anything that contributed to the accident, including faulty equipment.  Take a photograph of the incident report as well.

Don’t be embarrassed or too proud to accept help!  So many injured workers are fearful of losing their positions if they admit that they were injured.  However, it is important that you accept any offers for medical attention and transportation.

Go to the hospital!  Make sure your injuries are well documented.  Explain what happened and let the medical staff know about anything that is causing you pain; even the slightest pain could turn into a larger injury later on that you were unaware of.  you want to make sure this is documented in your medical records.

CALL US!  Even if you do not want to go forward with formal litigation, you have options and deserve to be compensated when your physical ability to earn a living was compromised.  We are here to help, even if you just want to hear about your options and discuss potential claims you may have.

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