San Francisco Accident Attorneys

Construction is a dangerous industry, with high rates of fatal and nonfatal injuries. Each year, several thousand construction workers are killed and hundreds of thousands are injured in work-related accidents. The construction worker may be injured or killed during the construction (or demolition) of a singe family residence, a planned community, a strip mall, a 50-story office building, or any other structures.

There are two broad types of construction site accidents: (1) accidents involving the construction workers themselves, and (2) accidents involving bystanders and passers-by.

Construction workers ordinarily cannot sue their own employers or coworkers for injuries they receive on the job, but instead are entitled to collect worker’s compensation benefits. These benefits are deemed the injured worker’s “exclusive remedy,” and worker’s compensation benefits are payable to the injured worker even if the employer or coworker who caused the injury or accident was not legally at fault (negligent). In fact, worker’s compensation benefits are available to the injured worker even where it was his or her own carelessness that caused the injury.  However, an injured worker can receive compensation for injuries caused by another party other than his/her employer.  

In most cases, however, worker’s compensation benefits usually are insufficient to compensate the injured employee (or the spouse and children of a worker killed in an on-the-job accident), as worker’s compensation benefits are considerably less than the monetary damages that the injured worker or his or her family could recover in a negligence lawsuit against a his or her employer or fellow employee if such person were careless (“negligent”) and caused the injured worker’s injuries.

There are several exceptions to the general rule that an injured party may not sue his or her employer or coworker for on-the-job injuries. The situations in which the injured worker can sue his or her employer directly include: where the employer does not have workers’ compensation insurance; where the employer removes or fails to install a “point of operation” safety guard on a power press; where the employer aggravates the employee’s injuries by fraudulently concealing the existence of the injury and its connection with the job; and where the employer deliberately injures the employee, that is, where the employer commits a “willful physical assault” on the employee.

An employee is barred from suing a fellow employee for injuries resulting from the fellow employee’s careless acts, unless the fellow employee was intoxicated at the time or the injuries are the result of the fellow employee’s “willful and unprovoked physical act of aggression.” A coworker can be held liable only if he or she had an intent to harm the injured employee. Where there is no evidence that the offending employee intended to harm his or her coworker, the injured worker can sue neither the employer nor the coworker. Thus, a flaring temper over the upkeep of an area of the workplace that led to a screaming fit between two employees, while unfortunate and unsettling, was not sufficient to state an act of aggression or assault outside the worker’s compensation system.

A “willful and unprovoked physical act of aggression” includes an intent to injure requirement. In one case, a supervisor held a gun to the employee’s head and threatened to blow his head off if the employee did not sign a termination notice and get off the hotel grounds. The Supreme Court of California determined that the very act of pulling a gun in the manner described and threatening to kill was intended to cause injury regardless of whether there was an intent to actually shoot. The Court stated that, under appropriate circumstances, clenching a fist or aiming a gun may be sufficient to convey a real, present, and apparent threat of physical injury. Although bodily contact is not necessary for a physical assault, the conduct must be the type that a reasonable person would perceive to be a real, present, and apparent threat of bodily harm.

A worker who suffers emotional or mental injuries that do not result in some type of physical injury or disability is not permitted to receive worker’s compensation benefits, nor is he or she permitted to sue his or her employer for such injuries. This may result in the inability of the injured employee to receive compensation for his or her emotional and mental injuries, resulting in a “wrong without a remedy.” The California Supreme Court has said of this result that “not every aggravation in normal employment life is compensable.”

Although the injured worker is generally prohibited from suing his or her own employer, the worker can sue others who have caused the harm. For instance, if another subcontractor’s employee’s carelessness (“negligence”) harms the worker, the injured worker can usually sue the other subcontractor without the restrictions on the amount of compensation that he or she would be able to recover under worker’s compensation benefits. (Of course, when an injured employee receives worker’s compensation benefits then sues another person for his or her injuries and collects a settlement or award of money, the worker’s compensation system ordinarily must be reimbursed for the money it paid.)

If the worker is a subcontractor or employee of a subcontractor and is injured by an unsafe condition on the construction site, the injured worker may be able to sue the prime general contractor for his or her injuries. The prime contractor has a legal obligation (“duty”) to ensure a safe workplace for all workers, whether they be the prime contractor’s own employees (who generally would be limited to receiving worker’s compensation benefits) or its subcontractors and their employees (who normally would not be limited to worker’s compensation if the injury resulted from the negligence of the prime contractor or one of its employees).

If the worker is injured because of a defective product—be it a faulty nail gun, ladder, blowtorch, etc.—the injured worker can sue the product’s manufacturer, distributor, and retailer in a product liability case without the workers’ compensation limitations on the amount of money the injured worker can receive. If the architect or engineer drew up defective plans that pose an unreasonable danger of injury or death to the construction workers, an injured worker may be able to sue the architect or engineer for his or her injuries and associated damages.

A prime contractor ordinarily is not liable for injuries caused by the carelessness (“negligence”) of its independent subcontractors, as the prime general contractor ordinarily lacks the right of control over the independent subcontractor’s employees. However, in some cases the general contractor (or owner) can be held liable for injuries to a subcontractor’s employees. For instance, a general contractor can be held responsible for the acts of an independent contractor and its employees where the general contractor retained control of the work or area involved; where the general contractor negligently hired, supervised, or retained an incompetent subcontractor; where the general contractor furnished the subcontractor with negligently designed or prepared plans or specifications; or where the general contractor provided the subcontractor with faulty equipment that injured the subcontractor’s employee. Also, if the task is highly dangerous and likely to cause serious injury, the prime contractor may have the duty to ensure that the work is carried out carefully and cannot delegate responsibility for the safe performance of the work to another.

Persons who are not working on the construction site (such as ordinary people who are walking or driving by the construction site) are entitled to sue the owner and contractor and/or subcontractor for their carelessness negligence that causes injury to them. For instance, if a pedestrian is walking on a public sidewalk adjacent to a construction site and is injured by flying debris coming from the construction site, he or she may be able to sue the owner and the contractor whose employee was responsible for the flying debris. Similarly, if a crane fails and falls to the ground, the injured persons may well be able to sue the owner/operator of the crane for negligence. If a bystander has been killed by a crane (or other industrial accident), his or her survivors (“heirs”) have the right to sue the owner and operator of the crane, and in many cases the crane’s manufacturer as well.

If a machine or piece equipment was defective and caused injury to the employee using it, in many cases the manufacturer and distributor of the product can also be held monetarily responsible (“liable”) for any and all expenses related to the accident under the laws of product liability. Likewise, if a bystander or passerby was injured or killed by a defective product used in construction, the manufacturer, distributor, and retailer of the machine or piece of equipment can be held liable under the laws of products liability for the damages or deaths resulting from its defective and dangerous product.

If you have been injured or a loved one killed in an accident involving a construction site accident, you should contact an experienced personal injury law firm as soon as possible. The law firm will usually want to send an investigator to the scene of the accident to inspect and take pictures of the accident site and any dangerous condition that caused or contributed to the accident before conditions change or the construction company repairs them. The attorney or his or her investigator will also want to talk to any witnesses to the accident while the facts are still fresh in their minds.

If the construction work that injured you or killed your loved one was being done by employees of a public entity, such as the state or a county or city or one of its agencies, it is generally necessary to file a claim for damages with the proper governmental agency within six months of the date of the incident, so you must act quickly in obtaining competent legal representation. An experienced personal injury attorney will know how and where to file this claim on your behalf.

An experienced personal injury attorney can also help with seeing to it that you receive a thorough physical and mental examination and treatment for any injuries you may have sustained in the accident. An experienced personal injury law firm can see to it that you obtain full compensation for your medical expenses, pain and suffering, mental anguish, property damage, lost wages, vocational rehabilitation, lost earning capacity, costs of retraining you to do a different job if you are unable to return to return to your old job because of your injuries, if you are permanently disabled and unable to return to any kind of meaningful work, and all of your other injuries and damages, physical, emotional, and mental.  Call now and speak with a lawyer for free about your case 415.738.7672

Bookmark It

Hide Sites

Tags: construction site accident