New York is a city and state where construction is a constant rather than an occasion, and it has complex and varied laws relating to construction site injuries. The Scaffolding Law, for example, covers workers injured in gravity-related incidents, workers’ compensation covers workers injured at work in all cases, and third-party injury claims when a third party injured a worker on the job.
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Who Is a Third Party for Injury Claim Purposes?
A third party in a construction site accident is a person or entity that is not the injured worker, the injured worker’s employer, or the employer’s employees.
In a construction accident, third parties can include:
- Makers of equipment used on site
- Other contractors working on the job
- The scaffolding company
- Companies renting heavy equipment to the site
Sometimes a worker can claim the employer is a third party for these purposes if:
- The worker suffers a grave injury
- The employer entered into a written contract or indemnity
- The employer did not obtain workers’ compensation coverage
Which Third Parties Can You Hold Liable?
To determine liability, the worker must first identify the party or parties that may have caused the accident.
For example, if the worker was using a piece of heavy equipment that malfunctioned and suffered an injury as a result, they must find out.
- Whether the employer owned or rented the equipment, the party that owned the equipment may be liable due to a failure to maintain it properly.
- Whether the equipment itself was defective in design or manufacture, if so and the worker was using the equipment as intended, then the maker of the equipment may be liable.
How Does a Third-Party Claim Differ from a Workers’ Comp Claim?
The most significant difference between the two claims is that the plaintiff must prove fault in a third-party claim, whereas fault is not usually part of a workers’ comp claim.
Since the worker’s potential negligence is not an issue in a worker’s comp case, it is generally easier to recover. However, coverage under workers’ comp is limited, which often makes the third-party claim, if available, more attractive.
If a worker can prove a third party liable or that their injury is grave, they can collect damages beyond the basic medical expenses and wage losses covered under workers’ compensation. These claims are not straightforward, but an experienced Long Island third-party injury attorney can help you understand your recovery rights.
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What Law Governs the Third-Party Claim?
Sections 200, 240, and 241 of the New York State Labor law require building owners and general contractors to implement reasonable safety precautions to protect workers and create a safe worksite environment. New York has long been a national center for construction. It, therefore, has stringent and virtually unique laws relating to safe construction work sites and the safety and recovery of construction workers on those sites.
Section 200 requires owners and operators of construction sites who provide, operate, and conduct the use of equipment to provide reasonable and adequate protection for the life, health, and safety of everyone who works or is lawfully present on that site.
Workers must operate and place any machinery or equipment on the site in such a manner as to provide reasonable and adequate protection for workers and site visitors. The state can close down equipment that does not meet the required safety standards.
Section 240, a law unique to New York, governs the handling of “gravity-related” injuries on construction sites. If a worker is injured by falling or by a falling object, the employer will be strictly liable for that worker’s injuries, including non-economic damages like pain and suffering.
Section 241 imposes specific requirements on all contractors and owners (and their agents) when constructing or demolishing buildings or doing any excavating relating to the same.
These requirements include:
- Timing of the placement of flooring or planking when the floors are fireproof
- The shafts must be enclosed or fenced in when using elevators, elevating machines, and hod-hoisting apparatus.
- Areas in which construction work, demolition, or excavation take place must be arranged, operated, and conducted in such a manner as to provide reasonable and adequate protection and safety to employees and visitors to the site.
- Except in cities of more than 1 million, the site must also provide safeguards for persons walking past the worksite.
- Owners/operators of worksites must survey for asbestos before beginning work. If the owner finds any asbestos on the worksite, the employer must remediate it before hiring workers.
These provisions do not apply to one- and two-family residences where the owners contract for but do not direct or control the work.
What Is Unsafe Equipment?
Under OSHA, unsafe equipment is missing machine guards, has moving parts with too much play, has not been lubricated as needed, is missing nuts or bolts, has loose or cracked shaft housings, and similar problems.
Under its recent Revisions to the Construction Codes, NYC defines unsafe equipment as any defective or unsafe equipment that poses a risk to the public and property. Such equipment must be immediately secured and corrected or removed from the worksite.
What Caused the Injury?
Under New York law, a construction worker injured on the job can sue anyone but the worker’s employee and fellow employees.
Some of the conditions which may cause a third-party injury are:
- Injuries on scaffolding assembled by a contractor
- Injuries caused by being struck by a vehicle or forklift operated by a subcontractor
- Injuries due to poorly loaded offsite by another firm’s agents
- Injuries caused by falling objects left on-site by a contractor or subcontractors
- Slip and fall injuries caused by debris left behind by a third party
- Injuries caused by workplace violence when the contractor or subcontractor engaged in:
- Negligent hiring—failing to check the criminal record of an applicant
- Ignoring reports of violent behavior
- Forcing workers to work alone, work late, or work in isolated settings
- Issuing warnings rather than having a zero-tolerance policy
- Having inadequate site security
When and How Can a Worker Sue a Third Party?
First, if a worker has received a grave injury, that worker can sue to recover damages for that injury.
New York law defines a grave injury as:
- permanent and total loss of use or amputation of an arm, leg, hand, or foot
- loss of multiple fingers
- loss of multiple toes
- paraplegia or quadriplegia
- total and permanent blindness
- total and permanent deafness
- loss of nose
- loss of ear
- permanent and severe facial disfigurement
- loss of an index finger
- injury to the brain caused by an external physical force resulting in permanent total disability.
According to Section 11 of the workers’ compensation law, a worker may also sue the employer if the employer failed to maintain workers’ compensation coverage.
If a worker suffers an injury by exposure to a toxic substance, the worker may file a toxic tort claim against the maker.
A worker injured by an employer’s malicious or intentional action may sue outside the Workers’ Comp system. These suits are seldom successful because the employer’s acts must be egregious.
Because of the much greater potential damages available under a standard tort action, it’s critical to determine whether a worker may be entitled to sue a third party or the employer. If successful, the worker may recover compensation for pain and suffering and, on rare occasions, punitive damages.
How Can a Worker Who Isn’t Working Pay a Lawyer?
A worker injured on the job site should meet with an attorney for a no-cost initial consultation as soon as possible. The attorney can gather the facts relating to the injury, determine whether there is any basis for a non-Workers’ Comp lawsuit, and explain the worker’s status to them.
As with most personal injury cases, a third-party construction injury attorney will take the worker’s claim on a contingency fee basis. A contingency fee is an arrangement under which the client will pay no legal fees until the case resolves in the client’s favor. Resolving a case in the client’s favor means either an award to the client by the judge or jury or a settlement in which the client receives a significant portion of the amount sought in the case.
When the client receives a favorable resolution, per the contingency agreement, the attorney will receive a portion of the fees, pay any outstanding medical and similar bills, and forward the remaining funds to the client.
If the case is not resolved favorably to the client, the client will not owe any legal fees. The claimant may, however, depending on the
The contingency fee agreement must be in writing, signed by the client, and must disclose arrangements for payment of expenses.
In Case of the Worker’s Death
If the worker dies in a construction site accident, the worker’s family can recover damages under workers’ compensation for the wrongful death. Under New York’s Workers’ Compensation Act, the worker’s family may receive up to 500 weeks of wage loss benefits at the worker’s weekly rate, a $6,000 burial expense payment, and all medical experiences. If there are children under 16, it may be possible to obtain more than 500 weeks of wages. The minimum death benefit is equal to 50 percent of the state average weekly wage in the year of the death.
Family members may also file a wrongful death lawsuit in addition to the workers’ compensation benefits. To file such a suit, there must be a third-party responsible for the accident which caused the worker’s death. Damages in wrongful death can include pain and suffering and be much higher than those in Workers’ Comp.
Under New York law, a wrongful death suit can be filed only by the deceased worker’s children, parents, spouse, or a representative of the worker’s estate. The law only permits two years to file such a case, so the worker’s survivors must consult with a lawyer skilled in these cases as soon as possible.
Who Receives Benefits Under a Third-Party Wrongful Death Claim?
New York law is very specific about who takes what in a wrongful death case.
The court will examine certain relationships in the deceased worker’s life to determine who gets which benefits:
- A spouse and children: The spouse and children may collect compensation.
- A spouse but no children: The spouse may collect compensation.
- No spouse or children: The parents may collect compensation.
- No spouse, children, or parents: The deceased’s siblings may collect compensation.
- No spouse, children, parents, or siblings: The grandparents may collect compensation.
To recover compensation, the worker’s family members will need to prove that:
- The third party’s negligence would have entitled the victim to have filed a claim if they had survived.
- There are surviving persons eligible to receive compensation under the law
- Monetary damages have resulted from the worker’s death
What Damages Can the Survivors Recover?
The worker’s survivors may recover the following types of damages under the wrongful death claim.
- Funeral and burial costs for the worker
- Costs of pre-death medical care for the worker
- Loss of the worker’s services
- Loss of inheritance from the worker
- Pain and suffering endured by your loved one before their death
Work With a Long Island Injury Claim Attorney
Although some aspects of certain claims can be a straightforward process, the legal issues surrounding this type of claim can be quite complex. Additionally, a courtroom can be an intimidating place, and you should not go into one alone. If you have suffered an injury due to unsafe equipment, you should be focusing on healing.
A Long Island work injury attorney experienced in cases like yours can navigate the treacherous waters of third-party worksite injury and wrongful death claims for you. A worker or the worker’s survivors only get one opportunity to recover their claims. Consider contacting a skilled and experienced attorney for the wrongful death and third-party construction site injury claims.