Unfortunately, injuries can occur in many different ways on a construction site. There are often falls and that is the leading cause of an injury on a construction site. A fall can occur on a roof, in an unguarded hole, or an unguarded stairwell and so forth. There could be a scaffolding accident involving a crane or other heavy machinery. There might be exposure to hazardous materials. There could a vehicular accident at one of these busy job sites. How does one go about proving liability? Remember that liability is not to be proven against the injured employee’s employer. Against that entity only worker’s compensation is available, the statutory scheme that has been around for a hundred years but not very great at making someone whole for their accident. Rather, liability in tort, as opposed to worker’s compensation, needs to be proven against another subcontractor or a general contractor. (I say another subcontractor because your client may well be an employee of a subcontractor and thereby have no tort claim against that particular, the employing, subcontractor. )
We have spoken about the American Institute of Architects (AIA) contract in another blog and its imposition of safety responsibility, typically on the general contractor, as expressed in that contract. There are other sources which impose safety duties on a general contractor. How do we go about proving that the construction accident which occurred was the responsibility of the general contractor? Obviously, in any case, you have interrogatory answers that can be incriminating. They can lead to other questions. There are of course innumerable e-mails that are generated by the actors. Comments will have been made by important personnel, oftentimes after a very serious accident. Perhaps something was reduced to writing to explain why that accident occurred. If the writing or statement was that of an employee of the defendant, you have an admission by a party opponent. Thus there is no hearsay problem.
Of course, notes and records from prior to the accident are grist for the mill as they too are useful. There are notes from weekly construction meetings. There are fixed agendas. Looking at what was on that agenda can provide you with many ideas for questioning. What was selected as important enough to merit discussion? What was left out? The topics deemed sufficiently important to be discussed speak volumes.
Nowadays, you might find YouTube postings and progress photographs and so forth of the project. These are in the public domain and discoverable. You or your lawyer should look for them on the internet. They might provide a fertile basis for even more ideas to pursue liability. Speaking of the internet, there might be descriptions by many of the players as to what responsibility they assumed on various projects, including the one that is the subject of the litigation. You might find those descriptions on LinkedIn or you might find those submissions in another magazine or online journal. All the better if that remark comes from one of the principal players in the construction litigation. The remark will likely be illustrative and possibly incriminating.
There remain many avenues that I have not even touched upon. Never forget to look for official investigations such as OSHA. OSHA obviously is the well-known federal agency that has been around since 1970 and whose mission it is to create a safe working environment. If OSHA has investigated, you will have quite a bit of information. If OSHA has not investigated, please look to the blog that offers ideas on how you may still benefit from the OSHA process.
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Boston Attorneys Win Highest Injury Verdict in Massachusetts in 2011 & 2012.