Search Site
Menu

OSHA Did Not Investigate This Construction Site Accident But Maybe


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

.

Feinberg & Alban, P.C. fervently protects your rights
  • The Boston firm of Feinberg & Alban, P.C. specializes its practice in the area of personal injury.

    The attorneys serve the entire state of Massachusetts in addition to affiliating with lawyers in other states to handle cases outside of Massachusetts.

  • $7.7 Million Award for Feinberg & Alban Client in Personal Injury Trial

    Boston Attorneys Win Highest Injury Verdict in Massachusetts in 2011 & 2012.

Client Reviews
  • google
    5.0/5.0

    I suffered injuries and total loss if my car last year in a head on collision. Colleen Santora took my case and fought well on my behalf. She thoroughly answered all my questions and concerns, always responding in a quick and timely manner. She helpe...

    Read more

    Jessica Matt

  • google
    5.0/5.0

    Choosing Feinberg & Alban was probably one of the best decisions I ever took. Robert Feinberg and Perry Feinberg are amazing in their professionalism as well as in compassion. Perry was the lead attorney for me. He was always responsive to any questi...

    Read more

    Raja Bhattacharyya

  • google
    5.0/5.0

    I would like to express my gratitude to Feinberg & Alban PC. They are great people and professionals. If you need an attorney these are your guys. Thank you so much! Tatiana

    Read more

    Tatiana Andreeva

  • google
    5.0/5.0

    It was unbelievable!! I got into a motorcycle accident didn’t remember a thing when I woke up I was in the hospital and very terrified I thought to myself I think I need a lawyer I started looking online and I came across this law firm let me tel...

    Read more

    Vin Loco

  • google
    5.0/5.0

    Colleen Santora helped immensely in every step along the way of my fight against the insurance company regarding my property damage and injuries sustained. I'm grateful and would recommend Colleen to anyone! Thanks

    Read more

    DatDude Lex

See all reviews
Awards & Affiliations
Contact us

Quick Contact Form