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

As for the first type of accidents, with the number of drivers and cars on the road increasing every year, there has been an increase in construction work to fix old, worn-out roadway surfaces, overpasses, and the like, and to expand the roadway to accommodate the growing number of drivers by adding lanes to existing freeways, highways, and roadways. A public entity (that is, the state, a county, or a city) has a legal obligation (a “duty”) to design, construct, and maintain its streets and highways in a reasonably safe condition for travel by the public.

Road construction accidents can result from a failure to post necessary warning signs, orange traffic cones, and other signage or systems warning of upcoming construction. The construction work may result in debris being thrown onto the roadway’s surface, where it strikes a car and causes injury or poses a hazard to traffic, such as causing oncoming traffic to swerve suddenly and violently at the last moment to avoid the debris. Accidents involving road construction and repair are particularly high at night, when it is less visible, but most construction is done because of the reduced traffic.

As for the second type of road construction accidents, dangerous conditions on improperly designed roadways lead to a number of serious injuries and deaths each year. The dangerous condition may be a sharp curve that is not properly graded, the lack of a guardrail at a freeway on- or off-ramp, the lack of a median barrier separating opposing lanes of traffic, and the lack of traffic signals or signs warning of a dangerous condition that would not be apparent to a person exercising due care for his or her own safety are just a few examples of conditions that cause or enhance injuries.

A public entity—such as the state, a city, or a county—is legally responsible (“liable”) for injuries caused by a dangerous condition of its property, including its roadways, if it could have anticipated (“reasonably foreseen”) that an accident could happen and a person injured, and the public entity had actual or constructive notice of the condition a sufficient amount of time before the injury to take preventive measures. “Constructive notice” means that the dangerous condition had existed long enough that the public body should have known of it, such as from a previous accident or complaint.

In cases against a governmental body arising from the dangerous condition of a roadway, the public body can escape liability if it meets the criteria of the “design immunity” defense. This requires that the government body prove three elements: (1) that the approved plan or design was a cause of the accident; (2) that an authorized governmental body, officer, or employee gave his or her discretionary approval to the plan or design before construction began; and (3) substantial evidence supports the reasonableness of the plan. The first and second elements of the design immunity defense are questions of fact for the jury to decide; the third element, however, is a question of law for the court to decide.

The defense of design immunity is based upon the concept of separation of powers. In short, the judicial branch through a court or jury should not review the discretionary decisions of legislative or executive bodies. This avoids the danger of interference with the freedom of decision-making by those public officials in whom the function of making decisions has been vested. It also prevents a jury from reweighing the same facts considered by the governmental entity that approved the design. If there is any substantial evidence supporting the reasonableness of the approved design, design immunity applies. This is true even if the injured victim presents evidence of a design defect. Even if an expert witness for the injured victim, in hindsight, finds the design defective, that does not mean the design was unreasonably approved. As long as reasonable minds can different concerning whether a design should have been approved, then the governmental entity must be granted immunity.

The “causal relationship” element requires proof that the alleged design defect was responsible for the accident, as opposed to some other independent cause. The “discretionary approval” element simply means approval in advance of construction by the legislative body or officer exercising discretionary authority. Thus, design immunity is not a valid defense where design decisions were never made.

The third element, that substantial evidence supports the reasonableness of the plan, is a question of law for the court to decide. “Substantial evidence” has been defined as “evidence of solid value which reasonably inspires confidence.” Ordinarily, the opinion of a civil engineer as to the reasonableness of a design constitutes “any substantial evidence” sufficient to support a government body’s design immunity defense. The issue is whether there is any reasonable basis on which a reasonable public official could initially have approved the design. As long as there is any substantial basis on which a government official could have decided the design was reasonable, it is irrelevant that a contrary opinion might have been offered. A public entity’s reliance upon the advice of a competent engineer is generally sufficient to establish reasonable approval of the proffered design.

It is not necessary that the property be perfectly designed; only that it be given a design that is reasonable under the circumstances. By using a “reasonableness” standard, the Legislature intended that government officials be given extensive leeway in their decisions concerning public property. A governmental entity is entitled to rely on what is apparently competent advice in making legislative decisions. The fact that on hindsight the advice may prove to have been flawed is not a basis for imposing liability on the governmental entity.

Design immunity is not permanent but may be lost as a result of changed conditions that subsequently make the improvement dangerous. As one court stated, “The Legislature did not intend that public entities should be permitted to shut their eyes to the operation of a plan or design once it has been transferred from blueprint to blacktop.”

To demonstrate the loss of immunity design, the injured person must prove three things: (1) that the plan or design has become dangerous because of a change in physical conditions; (2) the public body had actual or constructive notice of the dangerous condition thereby created; and (3) the public entity had a reasonable time to obtain the funds and carry out the necessary remedial work to bring the property back into conformity with a reasonable design or plan, or the public entity, unable to remedy the condition due to practical impossibility or lack of funds, had not reasonably attempted to provide adequate warnings. All three elements of the loss of immunity design defense are questions of fact for the jury to decide.

A change in design or engineering standards does not constitute a change of condition leading to the loss of design immunity. Technological advances in design and engineering do not constitute a change in physical condition. That the public entity may have inspected and installed improvements at other locations under its control does not constitute a change in physical condition.

As for the issue of separation of powers, the questions involved in the loss of design immunity are not the identical questions considered by the government officers who adopted or approved the plan. Therefore, the Legislature would arguably not have had the same rationale for taking such questions away from a jury. Where experience has revealed the dangerous nature of a pubic improvement under changed physical conditions, the trier of fact (i.e., the jury) will not be simply reweighing the same technical data and policy criteria that went into the original plan or design. Rather, there will then be objective evidence arising from the actual operation of the plan, matters which could not have been contemplated by the governmental agency or employee who approved the design. Thus, no threat of undue interference with discretionary-making exists in this situation.

While increased traffic volume may constitute changed physical conditions, design immunity is not lost simply because the design is operating under such conditions. There must be evidence that the design—under changed physical conditions—has produced a dangerous condition of which the public entity is aware. “Dangerous condition” means a condition of property that creates a substantial risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used. For example, an improvement may come to constitute a dangerous condition if increased traffic at the site, coupled with an aberrant accident history, indicates its dangerousness.

When the government entity has notice that the plan or design, under changed physical conditions, has produced a dangerous condition of public property, it must act reasonably to correct or alleviate the hazard. The government entity has a reasonable time to finance and take remedial action or to provide adequate warning of the dangerous condition.

Section 830.8 of the California Government Code relieves a public entity from liability for injuries arising from the failure to provide traffic or warning signals, signs, markings, or devices. However, liability may exist for failure to provide such a signal or device where the condition constitutes a trap to a person using the street or highway with due care. The government body can be held liable for injuries caused the failure to have a signal, sign, etc., if a signal, sign, marking, or device was necessary to warn motorists and other users of the road of a dangerous condition which endangers the safe movement of traffic and which would not be reasonably apparent to, and would not have been anticipated by, a person exercising due care for his or her own safety.

If you have been injured or a loved one killed in an accident involving the construction or design of a public road, you should contact an experienced personal injury law firm as soon as possible. Because the entity that owns, operates, or maintains the roadway is a public body, such as the state or a county or city, it is generally necessary to file a claim for damages with the proper governmental agency within six months of the date of the incident. An experienced personal injury attorney will know how and where to file this claim on your behalf.

It is also important to contact an experienced personal injury as soon as possible after the accident, as the attorney may want to send his or her investigator to the scene of the accident to inspect and take pictures of the accident site and any dangerous condition that caused of contributed to the accident before conditions change or the pubic body 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.

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 receive 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, and all of your other injuries and damages.

Bookmark It

Hide Sites