Construction Accidents

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I was injured on a Construction Site and Worker's Comp doesn't pay me very much. What else can I do?

Fortunately, New York law gives special protection to workers injured while in the course of construction, repair, alteration and/or cleaning of buildings.   This law applies to all workers, whether they are union members or whether they are undocumented and working off the books.  

The First "Scaffold Law" - In the late 1800's, there was a rash of deaths and devastating personal injuries resulting from workers falling from heights or being struck by falling objects in the construction trade in New York City, and in response to the public outrage, the legislature passed the "Act for the Protection of Life and Limb" in 1885. Known as the "Scaffold Law", it has been changed many times, but still exists today, and has been strengthened over the years.

 Today, the Scaffold Law today (Labor Law § 240(1)) is a Tremendous Benefit to You, the Injured Worker - Because the injured worker's employer is often the one responsible for the injuries which occur in falling from a height, the worker cannot sue his/her employer directly because of the Worker's Compensation Law. There is also no right to sue for the negligence of a co-worker or supervisor who works for the same employer. The Scaffold Law solves this problem by making the building owners, their agents, and general contractors absolutely responsible to these workers injured during the course of their work.  Your employer will usually have a provision in the contract (or subcontract) with the owner (or with the general contractor if your employer is a subcontractor), called a "hold harmless clause", which means that if the owner (or general contractor), is found liable because of something your employer did wrong, your employer's insurance company now comes in to play to contribute to your jury award or settlement. Absolute liability means that fault is not an issue, and usually, anything that you did wrong does not make a difference in a Labor Law § 240(1) case, unless the accident was completely your own fault and no one else's.  The worker does not have to prove that the owner or contractor was negligent or careless. The proof needed is minimal. That the accident happened because adequate safety devices to prevent the fall, or proper safeguards in the hoisting of material or equipment were not provided is usually enough.  In most, (but not all) instances, a fall from a ladder or scaffold is sufficient enough to entitle the worker to a verdict or settlement.  A fall through an unguarded opening or from any height of more than a few feet is also proof enough that the necessary safety devices were not provided.  Similarly, the fall of material or equipment may also be enough proof that sufficient safeguards were not being used.  Falls from as little as three (3') feet or into a trench or hole at ground or below ground level has even qualified workers for absolutely liability against the owner or general contractor.

Once Absolute Liability has been determined, the only issue at the trial is: How much money does the insurance company have to pay you?

Absolute liability is usually determined through what is called a motion for summary judgment. First, you will have to testify at a deposition, (also called an Examination Before Trial), and answer questions the defense attorney asks you under oath with a court stenographer present. The defense witnesses, your employer, and any witnesses favorable to our side must generally all answer our questions under oath. All of the contract documents between the owner, the general contractor, and the subcontractor have to be carefully analyzed. This includes blueprints, progress reports, shop drawings, progress photographs, and numerous other items we get from the defendants in the course of the lawsuit. In most of these cases, an expert in the particular field of construction or engineering has to be selected and retained. The defense attorneys selected by the insurance company will do the same thing on the other side to try to stop us from winning this motion. It is critical in these cases that this motion be won, because this means that you will not have to prove that anyone did anything wrong at the trial; the only issue at the trial will be what amount of damages the jury should award you. At our firm, we have an excellent track record of winning these motions, and we take pride in doing them.  Since most of our cases involve damages in the millions of dollars, the insurance companies generally appeal every motion like this that we win. We also have an excellent track record of winning these appeals, which ends any issue of whether the case will be won or lost - the only question that then remains is how much money the jury will award to you.  In this type of case, winning this motion and the appeal that comes after it is often necessary to end up with a large jury verdict.   

I was injured on the jobsite, but I didn't fall from a height. What can I do?

Workers involved in construction, excavation or demolition of buildings are protected by § 241(6) of the Labor Law, which reads as follows:

All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places. The commissioner may make rules to carry into effect the provisions of this subdivision, and the owners and contractors and their agents for such work, except owners of one and two-family dwellings who contract for but do not direct or control the work, shall comply therewith.  

The Industrial Code is a set of Rules, (Title 12 NYCRR Subpart 23-1.1 - Subpart 23-1.34), which have been put out by the State Labor Commissioner. This means that if you are a worker involved in the construction, excavation or demolition of a building, and you are hurt as a result of a violation of one of these rules, you generally have a right to sue the owner, the owner's agent, and the general contractor.

The Courts have held that to use this section, that the Industrial Code rule must be one that contains concrete specifications; it might not be good enough if the rule only has general descriptive terms which establish general safety standards, Ross v. Curtis-Palmer Hydro-Electric Co., 81 NY2d 494, Morris v. Pavarini Const., 9 NY3d 47. For example, 12 NYCRR § 23-1.5(c), which says that "No employer shall....permit an employee to use any machinery or equipment which is not in good repair and in safe working condition," is a general rule which cannot be used as a basis to sue under Labor Law § 241(6), Mahoney v. Madeira Associates, 32 AD3d 1303. On the other hand, 12 NYCRR § 23-1.7(b)(1), which says that "Every hazardous opening into which a person may step or fall shall be guarded by a substantial cover fastened in place or by a safety railing constructed and installed in compliance with this Rule", was specific enough to cover a worker who fell when a piece of plywood which was covering a hole in the floor slid out from under him, Wells v. British American Development Corp., 2 AD3d 1141.

A Labor Law § 241(6) claim, based on a violation of the industrial code, is not an absolute liability claim.

The facts of each one of these cases are very specific, and these rules can become very complicated, so you should remember that which law firm prepares the presentation of your case makes a big difference in whether the case will be won or lost.

Safe Place to Work - Labor Law § 200

 You may also have a cause of action for failure to provide a safe place to work under Labor Law §200. Owners and certain contractors who exercise control over the work in which the injury occurred owe a duty to use reasonable care to make workplaces that are under their control, as well as the ways of getting to and from the workplaces, reasonably safe, Pattern Jury Instructions § 2:216. While this is a very useful tool that can work in some cases, there are many exceptions to it, and using it successfully takes a great deal of experience.  

Sometimes Ordinary Negligence Rules Apply to These Cases

Because the specific provisions of Labor Law §§ 240(1), 241(6) and § 200 are often very favorable, many plaintiff's attorneys will just use them and forget the ordinary negligence theories which exist in all cases. We will never do this; we will keep every cause of action alive unless we decide not to use for particular tactical reasons. We won one case on an ordinary negligence theory where the general contractor had left a stud sticking up out of the floor, which the worker tripped on, needing back surgery and knee surgery. One must always be mindful of the fact that the general contractor almost always has responsibility for what is called "general housekeeping" unless the contract documents say something different.         

Sometimes it's good to show the jury a "Villain"

Sometimes when we already have "absolute liability" already decided, we will try that part of the case to the jury anyway against another defendant who actually was negligent. This can be very useful in showing the jury a "villain". Where jurors see that some blatant or obvious neglect caused a catastrophic injury, they can get very mad, and a large verdict can result from what we call a "punitive effect". Even though these are not technically what is referred to as "punitive damages", they can result in an award for more than what the case would otherwise be worth.

How does the jury decide how much my injuries are worth?

You will be called to testify in front of the jury with respect to your injuries, your medical treatment, your pain and suffering, and the various ways in which the accident has affected your life. If you are married, your spouse should usually be called as a witness, since no one else is more aware of how this has affected you. If you played sports or recreational activities before the accident, the people you did these things with, (we call them "before and after" witnesses), should be called to get this across. Many times your physical limitations and difficulties can be presented much more effectively and more convincingly through others than by talking about it yourself. Photographs of activities you engaged in can also be blown up or projected on screen for the jury, and can often forcefully express the value of what has been taken away from you by the injury.  You will also testify about your work history, and your prospects for earning more money in whatever job, trade or profession you were involved in. Other witnesses that we need to form the basis for the economist's projection also have to testify. 

The medical testimony is obviously a critical part of every personal injury case. You need attorneys who will take the time to meet with your treating doctors in their offices to get a good idea of what their testimony will be while your case is in progress, instead of waiting right before the trial to talk to them.

Example of the questions the jury normally answers at trial:

(1) State separately the amount awarded for the following items of damages, if any, from the time of the occurrence up to the date of your verdict:

Medical Expenses _______________

Loss of Earnings ________________

Pain and Suffering up to the date of your verdict_________________

(2)  State separately the amount awarded for the following items of damages, to be incurred in the future:

Medical Expenses ______________

Loss of Earnings _______________

 Pain and Suffering, including the permanent effect of the injury, from the time of the verdict to the time plaintiff could be expected to live. _____________________________

(3)    If you do decide to award any amounts intended to compensate the plaintiff for damages to be incurred in the future, then for each item for which an award is made, state the period of years over which such amounts are intended to provide compensation.

It might seem that the jury is being asked to pull a number out of the air, and some people would agree with this. However, experienced trial lawyers know that good results on verdicts come from the painstaking preparation of the client and the witnesses in order to make the best possible impression on the jury. First, because any juror is making a very subjective decision when he or she decides how much you should be awarded, the jurors must like you. Each of us have likeable aspects to his/her personality, as well as some aspects that might not be as appealing. The same is true of the spouse or "before and after" witnesses we might call. The medical testimony must not only be accurate and credible, but it must be properly illustrated. Medical illustrations lend a certain reality to serious injuries, and they can be much more readily understood with blow-ups of MRI's or CAT scans, artistic renderings of fractures or hardware that has been placed, or animated illustrations of surgeries you have had. The testimony of the economist must also be credible, particularly when his/her projections are in the millions of dollars. Most importantly, the attorneys you have chosen are the ones who will speak for you. The most important thing is that they maintain credibility with the jury in order to get a verdict that will give you the fair compensation you deserve for the serious injuries that you have suffered.   

The Insurance Companies Now Fight All of These Cases Tooth and Nail 

While it used to be that any worker who fell off a ladder was generally offered a large settlement no matter who the attorney was, this is no longer true. While the compensation received by workers who sustain serious injuries from falling from a height can be well into the millions, depending on the amount of the lost earnings claim, the attorney for the injured worker now has a much more challenging job due to new defenses which the Courts have allowed. We are still doing this successfully, but in order to bring your case to a successful conclusion, you really need lawyers like us who are experienced in this field and know how to avoid the pitfalls and traps for the unwary. You also need lawyers who will give your case the attention it needs, as opposed to lawyers who have hundreds of other cases to handle. At the Law Offices of William Cafaro, we keep our caseload very small so we can devote the time to each case that it deserves. The insurance companies not only evaluate your case and your injuries - they evaluate your lawyer. They do this by running a search on a website called "VerdictSearch", which contains the track record of every trial lawyer who does these cases. If you would like to see a copy of our results on VerdictSearch, we will be more than happy to provide it to you. To you, your case is the most important case in the world, so you should have attorneys who will take it very seriously.

There is nothing more important in the selection of a personal injury trial attorney for the handling of your accident than the security in knowing your case is being handled by highly skilled and experienced attorneys. The cases reported on this site exemplify the matters handled successfully through trial and appeal by the Law Offices of William Cafaro, an experienced and proven law firm you can trust with your work site accident case. 

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