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Massachusetts Construction Accident Liability Law Deconstructed

Posted by attorney W. Smith

A construction jobsite injury can be devastating, both physically and financially, to a carpenter, plumber, electrician, laborer, ironworker, mason, or other tradesperson. Workers' compensation benefits do not make up for the loss of income from time out of work and the strain put on the worker's family. When a construction accident occurs that results in lost time from work, workers in Massachusetts are automatically entitled to workers' compensation benefits. Beyond workers' compensation, however, the injured worker's right to compensation is through what is known as a 'third-party' claim. This is a liability claim against a party other than the injured worker's employer or co-employee whose negligence caused the work-place accident. To be successful, the injured worker has to prove that the accident was caused by the third party's negligence. This type of claim is not available against the worker's employer or co-employee. The 'third-party' liability claim can provide additional compensation beyond the amounts provided by the workers' compensation system. A typical 'third-party' claim from a construction site accident injury will involve a lawsuit against a general or sub-contractor on the site who is not the injured workers' direct employer. Other third-party claims might involve the construction manager, safety contractor, engineer or architect, or the manufacturer or installer of job-site equipment, depending on the type of accident and injuries involved. Some examples of third-party claims are: laborer injured by fall from roof: third-party liability claim against construction manager and safety manager for lack of fall protection; ironworker injured in fall from icy beam: third-party liability claim against general contractor for insisting that job-site open in dangerous conditions; laborer injured during demolition by collapsing wall: third-party liability claim against architect and engineer for unsafe demolition plan; roofer electrocuted while installing flashing: third-party liability claim against electric company for maintaining high voltage wires too close to house; electrician's apprentice injured by defective lift bucket controls: third-party liability claim against bucket manufacturer; carpenter injured by collapse of porch: third-party liability claim against homeowner for failing to warn of dangerous condition of porch; electrician killed while wiring floor ducts: third-party liability claim against general contractor and building owner for failing to de-energize circuit. One of the difficulties in proving a 'third-party' claim is that the condition of the job-site changes day-to-day. The condition that may have caused the worker's injury is most often temporary. Photos taken immediately after a construction accident are invaluable. OSHA, when it investigates, frequently takes photos and these can be useful. Also, job-site safety officers frequently photo accident scenes. Importantly, however, OSHA and the job-site safety officers are not representatives of the injured worker, and often have differing and sometimes conflicting interests regarding construction accidents. OSHA's function is to determine whether a violation of its standards occurred and to charge the employer with a violation; OSHA is not empowered to bring any type of legal action against a 'third-party' and will not investigate this type of possible claim. OSHA's determination that the direct employer, or even the injured worker himself, is at-fault can actually undermine a 'third-party' accident liability claim. Similarly, the safety officer's role is not to protect the injured construction worker's rights, and other contractors 'investigating' an accident are obviously not looking to assume responsibility or admit to negligence that resulted in a serious injury. Because of the ever-changing condition of job sites, and the numerous different interests represented at those sites after a construction accident, an injured worker and his family are best protected by promptly retaining an attorney experienced in construction accident claims. The best situation for an injured worker is for a representative of that worker to promptly investigate and preserve photographically the accident scene, and to work hand-in-hand with an experienced workers' compensation attorney to ensure that all of the workers' interests are protected. However, even in the absence of prompt investigation by either the injured worker's representative, OSHA or the job-site safety personnel, the conditions at the time of a construction accident can frequently be reconstructed through the use of progress photos, construction logs and the testimony of other workers. It is the job of the injured worker's lawyer to assemble these pieces of evidence to prove the negligence of the 'third-party'. An experienced construction accident attorney is essential not just to preserve an injured construction worker's claim at the outset, but to see it through to its successful conclusion. An injured worker should know that he has an attorney and a law firm capable of meeting what he will be up against. Contractors at construction sites are often insured through a web of insurance policies and insurance coverage that can pit nearly every contractor, including in some cases the injured worker's own employer, against him. 'Third-party' claims are vigorously defended by insurance companies, who hire lawyers for the at-fault parties and pay the costs associated with defending such liability claims. They try to prove that the construction accident was the injured worker's fault and/or the fault of the worker's employer. They try to minimize the nature and extent of the worker's injury. At times, it seems as if the insurance companies are attempting to outlast the injured worker's ability to hold on financially. Injured workers should be wary of promises of early, substantial settlements of their claims after a construction accident. Settlements before litigation in such cases are extremely rare, and can result in the injured construction worker taking far less than his case is worth, which may benefit the lawyers and insurance companies but not the injured worker. Successful third-party cases often take several years to be settled or tried in front of a jury. Properly handled, they can be expensive, and may require the engagement of professional and medical experts to testify on the injured workers' behalf. During construction litigation cases, co-workers, foremen, supervisors, and superintendents are usually called to testify at deposition. The injured worker and his/her family is similarly called in to give deposition testimony. The worker is often examined by an insurance company doctor. Each step in the process is important for the successful outcome of the third-party liability case, and must be viewed and handled as such by the worker and his attorney. When the case is settled or there is an award for the worker at trial, the workers' compensation insurer has a right, by Massachusetts statute, to be repaid the amounts that it has paid out. However, the point of the 'third-party' claim is to provide additional compensation, so that the amount paid to the workers' compensation insurer is often negotiated to be a lesser amount. Unlike a workers' compensation claim, a 'third-party' claim, if it is successful, usually involves a one-time, lump-sum payment made at the end of the case for the benefit of the construction worker and/or the worker's family members. A construction worker injured on the job may know or believe who is at fault for a construction related accident, but gathering evidence to prove who is at fault requires an attorney and law firm with accident liability experience and resources. Choice of the right attorney and law firm is the most important step that an injured worker can take towards a successful outcome.

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