Construction sites are dangerous places to work. Workplace injuries are a nearly inevitable aspect of construction work.
Even on a small scale jobsite, hazards abound. Construction involves the use of potentially hazardous power tools, and often multiple contractors or subcontractors are present at the construction site performing different tasks.
At a major construction site, there may be heavy equipment and cranes, dozens of contractors and subcontractors, and thousands of pounds of building materials and supplies around the jobsite, which may involve significant excavation, scaffolding, or construction.
The risk of serious injury at a construction site should not be underestimated. So how can an injured construction worker receive compensation?
Injured construction workers will often be able to resort to workers' compensation benefits to cover some of their lost wages, their medical care, and rehabilitation.
In most cases, where the worker's injury is caused by the worker's own error, or by the negligence of the employer or a co-worker, workers' compensation will be the exclusive remedy available to the worker, meaning that no personal injury lawsuit is permitted. However, where a third party bears partial or full responsibility for a construction worker's injury, it may be possible to bring a lawsuit in addition to the workers' compensation claim.
Many injuries on construction sites are caused by mistakes or carelessness, which are common grounds for personal injury actions based upon the theory of negligence. Under the exclusive remedy rule, it is not ordinarily possible to bring a negligence action against your own employer or a co-worker (somebody else who works for your employer).
However, where multiple contractors and subcontractors are operating at a construction site, it is not unusual for an injury to have been caused by somebody who is not a co-worker. It may be possible to pursue a personal injury action against such an individual, and against that person's employer under principles of respondeat superior or "vicarious liability", legal doctrines that hold an employer responsible for certain negligent acts of an employee, made during the course and scope of employment.
A product liability claim involves the allegation that the plaintiff's injury was caused by a product that was unsafe, usually because of a design defect, production defect, foreseeable misuse, or inadequate warning labels or instructions.
Where a third party (somebody other than the employer) is responsible for the design, installation, maintenance, or warnings associated with the machine, and that person is negligent in carrying out their associated duties, it may be able to pursue a product liability action against the third party in relation to the injuries suffered by the construction worker.
Although some states make an exception, where the product or machine at issue was built to the employer's specifications and is maintained by other employees, a worker is generally unable to pursue a product liability claim against his own employer.
In a construction injury case, it may be difficult to determine who will be treated as an employer for purposes of workers' compensation, and in some cases may be difficult to determine that an injury is in fact work-related.
Sometimes a contractor or other business will make an arrangement with another business, such that the second business hires, manages, and pays a group of employees to perform specified tasks. Whenever possible, these arrangements are typically structured to make the employees "co-employees" of both businesses. That may serve to prevent the workers from bringing a personal injury action against the contractor or business, even though the employee didn't realize that he or she had more than one "employer" in the eyes of the law, and even though the "co-employer" did not directly provide worker's compensation coverage for the injured employee.
Construction workers should also be aware of possible injury through workplace or environmental toxins. Many workers on shipyards found out, decades later, that they suffered from asbestos-related illnesses. Welders are increasingly concerned about possible exposure to manganese in welding rods, causing manganism. There is growing concern about silicosis, from silica dust released into the air during construction work. Use or exposure to lead paint can result in lead poisoning.
Injured construction workers will usually benefit from consultation with a qualified workers' compensation lawyer, who ideally will be associated with a personal injury practice. That way, the worker's situation can be reviewed not only for workers' compensation, but also for possible recompense from responsible third party defendants.