In a recent blog I talked about ways to prove your construction site accident case and I ended with a discussion of OSHA. I said if they came and investigated, that would be a fertile ground of material for your lawyer. However, there are circumstances, in fact many, where even if a serious accident occurred, OSHA will not come to investigate. Recently, there are more stringent requirements on having OSHA investigate. Let’s assume that we are dealing with those times where there has been no investigation of the construction accident.
Whether OSHA investigated the subject accident or not, I suggest that any thorough lawyer should do a full OSHA search for any violations in the past of the general contractor or the subcontractor involved in the current case. This information of past violations is readily available on line. Even if the subcontractor was the injured victim’s employer- and thereby the subcontractor cannot be sued in tort- information about their past violations can help in your case. Why? Because the details of prior violations of the involved companies puts all of the defendants in your case on notice of problems. How persuasive, or probative as we lawyers like to say, if those violations involve the very types of negligence involved in your case? Answer: incredibly so.
In the past I have blogged about the conditions under which certain evidence might be admissible. Well, OSHA violations which bear on the same kind of accident that occurred to your client, to the employee, will come in for the reason known as notice. Now, the judge can be asked, and probably will accede, to the other side’s request that he/she give the jury a limiting instruction on the use of such evidence. The nature of that limiting instruction will be that the prior violation can be used to show that the defendant was on notice of the issue for which someone had been given the violation. The judge would then go on to caution the jury that they are not to use the evidence of the prior violation to determine that the defendant was in violation in the case at hand. If it sounds a little complicated, well it is but let me say it is useful and the point should be made. (Another blog will have to deal with the issue of the efficacy of such limiting instructions and whether they are understood.)
The fact that prior violations will have an evidentiary purpose allows your attorney to make a strong point at a mediation. The idea that there may have been violations before the time of your client’s accident, violations that were handed out, meted out, to one of the important players at a construction accident site is very, very important. The argument will be that the defendant knew that the issue for which it was cited was very serious enough to trouble OSHA. Yet, even though they, or a subcontractor, were cited for failure to abide by that OSHA regulation, they did nothing to benefit or learn from that experience. Since, in this scenario, the same issue arose in the case that you are suing and it may even involve an accident just a few years after the original violation, you have a very significant piece of information. Yes, indeed, the argument goes, didn’t that earlier violation put the defendant on notice that they needed to correct or change their act?
If your attorney can find some misconduct on the part of the defendant from an earlier time, or even on a subcontractor, and that misconduct has some relevance to the case, then you are in a very good and strong position in pursuing your construction accident site litigation
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