Construction Site Injuries

July 28, 2009

By: David K. Jaffe

Construction site injury litigation usually involves a variety of potential defendants and a number of complex legal issues. In the case of an injury to an employee of a subcontractor, the potential defendants may include the general contractor, the landowner, the architect, the design engineer, and/or the manufacturer or supplier of equipment, as well as the subcontractor. The issues may include the legal immunity of the immediate employer under workers' compensation statutes; the landowner's common law immunity from liability for the torts of an independent contractor; and indemnity and contribution.

In many area of premises liability litigation, the parties affected by an injury-causing accident are easily identified by their relationship to the actual premises involved. However, construction site accidents are quite unique in several significant respects. Often even the simplest accident occurring on a construction site may give rise to an extremely complicated lawsuit, usually involving multiple parties, as well as a vast array of substantive legal issues.

As an example: The employee of a subcontractor who is engaged in some aspect of work on a large construction project is injured when the scaffolding on which the employee is standing suddenly collapses. Assuming that the injured employee is able to collect benefits from under the provisions of an applicable workers' compensation statute, the subcontractor, his immediate employer, will likely be immune from any further tort liability for the injury. Nevertheless, in most instances, the injured worker can still file tort actions against a variety of other third parties as a result of the accident.

Absent some statutory immunity, the general contractor responsible for the entire construction project may be alleged to have been vicariously liable under the common law doctrine of respondeat superior for the negligence of the worker's immediate employer who cannot be sued directly. Even if the subcontractor's negligence is not imputed to the general contractor, the worker might still be able to recover against the general contractor based upon some independent act of negligence, such as the contractor's failure to properly supervise construction, or his failure to correct known safety violations by the subcontractor.

Another potential defendant arising out of the injured construction worker's accident is the owner of the construction site itself. Among the more common grounds for imposing negligence liability directly against a landowner are the owner's failure to warn of known hazards and defects existing on the premises, or the failure to remedy construction practices which were known to have been unsafe. Infrequently, the owner also may be held vicariously liable for the negligence of either the general contractor, or a subcontractor. However, in most situations such liability is barred by the application of a common law rule granting immunity against suits based solely upon the owner's hiring of an independent contractor. In order for the court to apply this special immunity rule, it must first overcome each of the many exceptions to the rule which have developed. Similar legal issues also typically arise concerning the injured employee's action against the developer of the construction project, who may often be treated as an owner for purposes of determining liability.

Other potential defendants in the injured worker's tort action are the architects or the design engineers responsible for the ultimate site supervision of the construction project. Of course, these defendants may also be sued for negligence based upon some defect existing in the actual design of the structure itself. Similarly, the injured employee may possibly be able to establish a claim for negligence against any number of public officials and other persons who inspected the construction project to ensure its compliance with applicable state and federal safety requirements.

If the worker's injury was attributable to some defect in the equipment used on the job site, then the manufacturers or the suppliers or installers of such equipment are also potential defendants. In such a situation, the injured worker is likely to assert a claim based upon some form of strict liability for defective products. Likewise, liability may also be asserted directly against those defendants responsible for providing electrical service.

Superimposed upon all of these various claims which can potentially arise out of the scaffolding accident are an equally imposing number of claims and counterclaims based upon the principles of indemnity and contribution. When the traditional negligence defenses of contributory or comparative negligence and assumption of the risk, if otherwise applicable, are added to the list of issues to be resolved, not to mention a variety of specialized statutory defenses, the resulting lawsuit is anything but simple. Similar complex issues also arise where the injury occurs to third person non-employees or to other entrants on the premises, such as children.

In construction premises cases, the ultimate determination of liability is based upon a variety of interrelated concepts. Often, a number of different defendants are involved whose relationships to each other are of greater legal significance than any one defendant's status.