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work injury law

The four major causes of death in construction site injuries—classified by the Occupational Safety and Health Administration as the “fatal four”—are falls, electrocutions, struck-by, and caught-in/between. In 2013, they accounted for 58.7% of the fatal injuries in construction. 1

In many worker injury cases that occur at construction sites, liability falls to the general contractor and/or construction management. This is the person, company or group responsible for workers’ safety. And the injuries correspond in particular ways to safety requirements and standards that assist in the determination of liability. For example, when a worker falls from a cracked scaffolding plank, this may reflect the general contractor or construction management’s failure to require scaffold grade lumber. 2 If a worker is crushed by falling masonry that is blown over by wind, this may reflect a failure of the general contractor or construction management to require bracing of the wall. 3

In other workplace injury cases, the liability is not the general contractor’s, but instead falls to the premise owners, who may have failed to comply with certain safety standards. For example, if a roofer falls through a roof opening while making repairs, there may be a failure on the part of the premise owner to require roofers to use fall protection. 4 If a contractor installing a rack handles materials unsafely, causing a worker to be struck by the materials as they fall, the liability may be associated with the premise owner’s failure to require forklift operators to be trained properly and to handle loads safely. 5 If a construction worker in a petrochemical plant is exposed to fire and as a result suffers a burn, the liability may fall to the premise owner who failed to require contractors to wear flame resistant clothing. 6

In some workplace injury cases, the damage or personal injury are directly related to the tools or materials that the worker uses. In such instances, the liability may be attributed to a third party such as the lessor of construction equipment (scissor lifts, forklift trucks, etc.), the supplier of work clothing, the scaffold erector, or the architect. These third parties may be associated with the injury sustained by a worker in such a way that a portion of the responsibility is legally attributable to them.

In the case of a workplace injury at a construction site, the following documents should be requested from the general contractor or construction management:

• The defendant’s written safety and health program
• Copy of the pre-job safety conference minutes
• Copy of all safety inspection reports
• Copy of all weekly safety meeting minutes
• Written job description of the superintendent
• Contract of general contractor/construction management with construction project owner
• Contracts of general contractor/construction management with other entities
• Incident investigation report performed by general contractor/construction management
• Incident investigation report performed by employer of injured employee
• Safety inspection reports performed by insurance company loss control representatives
• Inspection reports performed by consultant or others 7

Contract laborers are a particularly complicated class in term of personal injury and insurance coverage. These are workers who are not permanently employed by the organization or company for whom they were working when a catastrophic accident occurred. According to the guidelines of the Occupational Safety and Health Administration (OSHA), injuries sustained by contract laborers should be recorded by the “establishment that provides supervision to the injured worker,” 8 which may be the construction company rather than the contracting agency. However, workers’ compensation for the contract laborer would be the responsibility of the contracting agency, rather than the company or organization who retained the services of the laborers.

1 Dong Zhao, et al., “Decision-Making Chains in Electrical Safety for Construction Workers,” Journal of Construction and Engineering Management 142 (2016): 04015055-1.

2 Vincent A. Gallagher, Worker Injury Third Party Cases: Recognizing and Proving Liability (Lanham, MD: Bernan Press, 2017), 3.

3 Vincent A. Gallagher, Worker Injury Third Party Cases: Recognizing and Proving Liability (Lanham, MD: Bernan Press, 2017), 5.

4 Vincent A. Gallagher, Worker Injury Third Party Cases: Recognizing and Proving Liability (Lanham, MD: Bernan Press, 2017), 7.

5 Vincent A. Gallagher, Worker Injury Third Party Cases: Recognizing and Proving Liability (Lanham, MD: Bernan Press, 2017), 6.

6 Vincent A. Gallagher, Worker Injury Third Party Cases: Recognizing and Proving Liability (Lanham, MD: Bernan Press, 2017), 8.

7 Vincent A. Gallagher, Worker Injury Third Party Cases: Recognizing and Proving Liability (Lanham, MD: Bernan Press, 2017), 37.

8 Bureau of Labor Statistics, “Examining the Completeness of Occupational Injury and Illness Data: An Update on Current Research,” Monthly Labor Review, June 2014.