Accidents involving falling or moving objects are common on construction sites. In order to determine who is liable when a person is hurt on a construction site, there are a number of considerations, which include:
- Is the injured person a worker on the site, a visitor to the site, or a member of the public?
- Was the cause of the injury an on-the-job accident?
- Did the injured person have any role in causing the accident?
Liability for a Worker’s Injury or Death
Workplace injuries in construction activities are common. The Occupational, Safety, and Health Administration (OSHA) reports that during 2014 (the most recent data available), the rates of injury or illness in the construction industry averaged 3.6 people per 100 full-time workers. Moreover, 17% of all job-related fatal injuries in America occurred in the construction trade. In 2014, there were 933 construction workers’ deaths from accidents at work.
OSHA says that two of the top “fatal four” causes of death on construction sites are: 1) being struck by an object (8.1%) and; 2) being caught in or between objects (4.3%). This includes construction site injuries of being caught, crushed, or struck by equipment, and suffering injuries from the collapse of structures and/or falling materials.
When an injury to a worker happens on the job, the coverage of the accident is by workers' compensation insurance. The employer is not liable under New York law, unless something the employer did caused or partially caused the accident. An employer is liable, if the employer knowingly forced employees to work under unsafe conditions (e.g. erecting metal towers during a thunderstorm) or without the proper OSHA-required safety equipment.
Worker’s compensation benefits are only for employees. There is a long list of the types of individuals NOT covered by workers’ compensation insurance. Examples are clergy, people volunteering for non-profits, independent contractors, casual youth workers (doing gardening chores etc.), and senior executives of small, closely held companies, unless they choose the option to have worker’s compensation insurance.
For those injured on a construction job site and not covered by workers’ compensation insurance, they are treated the same as visitors to the site or the general public.
Injury to Site Visitors and Members of the Public
Injuries to visitors that are not covered by worker’s compensation are covered by insurance maintained by the site owners and/or insurance maintained by the construction companies doing the work. Occasionally, insurance of the engineering companies, architects, and construction design firms, may also cover all or part of the liability exposure. The liability depends on the circumstances of the accident, who and what was involved, and whether any negligence caused the accident. Manufacturers of equipment that causes accidents may be liable if the equipment is faulty. In many construction injury lawsuits, attorneys sue multiple parties. Each of the defendants in a construction lawsuit may be allocated a portion of the total liability for the damages claim, if the suit is successful.
The responsible parties managing the construction site have the legal obligation to prevent injuries to the public from falling objects or objects that could strike them. Failure to provide adequate protections creates liability for those responsible. Even with proper precautions, things can go wrong. If anyone is seriously hurt or killed for any reason on a construction site, it is time for all parties, on both sides, to get competent legal representation.
New York “Premises Law” and Unauthorized Persons
The State of New York has a Premises Law that covers the extent of liability an owner of a property has depending on the type of person who enters the land. The three categories of people are an invitee, licensee, and a trespasser (unauthorized person).
Invitee
A landowner in New York must exercise reasonable care to protect those who enter the property from injury. The highest level of care required from a landowner is for a business invitee. To protect business invitees, a landowner must inspect the land and immediately remedy any dangerous conditions, as well as warn the business invitees of the dangers.
Licensee
Under N.Y Premises Law, a licensee is not what it means in the ordinary use of the word. A licensee is a person not directly invited to the property, but allowed to enter it. An example of a licensee is an uninvited social visitor. For visits by licensees, the landowner has no requirement to inspect the property for safety or to make it reasonably safe. The landowner is only liable for injuries sustained by licensees, if the landowner knows of dangers on the property and it is reasonable to think a licensee might encounter a dangerous condition.
Trespassers
Trespassers are unauthorized persons, prohibited from entering the property. In New York, a landowner is not generally liable for injuries sustained by trespassers unless there is intentional and/or reckless negligence in dealing with dangerous conditions on the property. The one exception is children. If there is a possibility of children trespassing on the property, the landowner must take extra precautions to avoid liability. An example of this is a property with a swimming pool.
If someone sustains an injury by being hit or struck by an object on a construction site, it is very important to seek competent legal counsel immediately, because the causation of the accident and determination of liability usually is a complex matter. The recommendation to seek legal counsel is the same for those who are injured (their family members or heirs in the case of a death) as it is for the parties who may have liability exposure.
