Twenty-six year-old Joseph Delaney was carrying a load of steel rods at the site of a new baseball stadium in Ramapo, New York when his forklift tipped over and ejected him from the vehicle. Apparently a tire sunk several inches into muddy ground, causing the load, and Delaney’s vehicle, to become unstable. He suffered a number of injuries, including bruises to his shoulder, hip and legs.
The Occupational Safety and Health Administration (OSHA) launched an investigation into the accident. Delaney’s employer, Nikko Construction, has actively participated in the inquiry. The accident brings about a number of questions regarding how workers may be compensated for on-the-job injuries. This article highlights OHSA’s role in construction site accidents, how workers’ compensation works and how injured workers may bring a private cause of action against offending employers.
OSHA’s Role in Construction Site Accidents
As part of the U.S. Department of Labor, OSHA is responsible for ensuring safe working conditions. It establishes and enforces safety standards for a number of industries, including those using flammable or toxic liquids and heavy equipment, especially those in inherently dangerous environments. OSHA is also charged with investigating safety complaints and worksite accidents.
American workers have a right to safe working environments. To that end, employers are required to follow OSHA safety standards and provide a workplace free of serious hazards. OSHA conducts periodic investigations to ensure compliance and also reviews accidents to discover whether safety violations caused an accident. When violations occur, OSHA may hold the employer liable and levy fines for non-compliance. However, it does not compensate employees for injuries or losses arising from an accident.
Workers’ Compensation as a Remedy
Injured workers may seek workers’ compensation benefits to pay for medical expenses and lost wages when they are hurt in workplace accidents. Workers’ comp is established as a no-fault system to ensure that employees are compensated based on the injury itself. Negligence is not considered in calculating benefit amounts. As such, employers are not sanctioned for violations that may have caused an injury, and employees are not punished for their own carelessness (although a work comp claim could be denied if it is found that the worker was intoxicated or if he or she intentionally attempted to injure someone). Further, workers’ compensation is normally the exclusive remedy for injured workers, so employers are not held accountable through this mechanism for safety issues that cause accidents.
Private Causes of Action
Despite this, employees may seek damages based on industrial violations. Section 241(6) of New York’s Labor Law requires owners of the land upon which the construction work takes place to make sure that construction areas are “constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein”. The law also requires employers, owners and all contractors to comply with safety regulations set forth by the New York Labor Department. Further, this law allows injured workers to bring a cause of action against the owner of the land where the accident occurred and/or any contractor, except for the injured worker’s own employer. New York’s highest Court has held that Section 241(6) “imposes a non-delegable duty of reasonable care on owners and contractors” and that the “ultimate responsibility” for safety compliance rests with them. Thus, even if the landowner hires a contractor to perform all aspects of the construction or if a general contractor hires a sub-contractor, both will be liable for a worker’s injury even if they did not supervise or control the work being performed at the time of the accident. Moreover, prior notice of a dangerous condition is not required to impose liability under this law.
To prevail upon a Section 241(6) claim, an injured worker must prove that one of New York’s safety code regulations was not complied with, that the failure to comply with the regulation amounted to negligence on the part of someone, whether it be the owner, the general contractor, a sub-contractor or even the injured worker’s own employer, and that the worker’s injuries arose from the work-related activities protected by the statute. For example, Mr. Delaney would have the burden of demonstrating that New York has a specific safety rule covering the facts of his accident, that the rule was violated, and the failure to provide this safe workplace occurred due to the negligence of someone or some entity connected with the construction project. Under New York’s Industrial Code Rule 23-9.8 governing lifts and fork trucks, subdivision (e) requires “no lift or fork truck shall be used on any surface that is so uneven as to make upsetting likely”. Since this provision was violated, all Mr. Delaney would have to establish is that it would be unreasonable (unsafe) to require him to use the forklift on this muddy surface.
With construction site accidents, there are a number of avenues for recovery. A lawyer can help you understand how the different remedies work, the likelihood of success and the time limits associated with each type of claim. If you or a loved one has been hurt in a construction site accident, contact an experienced personal injury attorney.