Maizes & Maizes, LLP

New York is the only State that has strict liability construction liability for owners, contractors, and subcontractors. New York construction work site litigation is high stakes for all involved. Verdicts are often in the millions of dollars, especially if a worker suffers a career-ending injury. The costs of defense—legal fees and experts—are correspondingly high.

 

Workers who are here illegally, do not report taxes or are undocumented, are allowed to sue for their worksite injuries, except for their employer (unless their injuries are “grave”). Unwitnessed or staged accidents can and do occur. Workers often don’t know who their actual employer is or are paid in cash.

 

This underscores the need for experienced legal representation for all involved from beginning to end.

 

For the owner, contractor and subcontractor, it is mission critical that before construction begins, there be in place a proper contract that contains appropriate indemnity, defense, and insurance provisions. Furthermore, it is necessary that the insurance actually be issued and obtained and paid for, and that the insurance covers the worksite/operations of the job, and provides appropriate additional or primary coverage to the owner, contractor and/or subcontractor for labor law litigation.

 

There is a vested interest in ensuring that proper worker’s compensation insurance is in place, and that all subcontractors/employers are reputable, capable and properly oversee the workers and worksite activity. Site safety managers should be employed to ensure that there are no Labor Law violations and that workers are provided a safe place to work. If an accident occurs, it is imperative to fully document what happened with a fully investigated accident report, photographs, witness statements, etc.

 

Once a claim is made or litigation begins, it is again critical that the sued party ensure that the claim is timely reported, and that legal representation is obtained. In New York, an entity (corporation, LLC etc.) cannot represent itself and must be represented by counsel.

 

For the injured worker, he or she must make sure that the cause of injury is also properly documented, including witnesses, photographs, worklogs, etc. and that such proofs are properly authenticated and preserved. The worker also has time limitations and must make proper claims and demands for both workers’ compensation and for litigation against others.

 

Worker’s Compensation. In most instances, New York employers are obligated, as a matter of law, to provide workers with worker’s compensation insurance. If a worker is injured on the job, he/she is entitled to coverage for lost wages, disability, medical expenses, and hospitalization.

 

In exchange, the worker cannot sue the employer for damages, unless the worker sustains a “grave injury” which means: death, permanent and total loss of use or amputation of an arm, leg, hand or foot, loss of multiple fingers, loss of multiple toes, paraplegia or quadriplegia, total and permanent blindness, total and permanent deafness, loss of nose, loss of ear, permanent and severe facial disfigurement, loss of an index finger or an acquired injury to the brain caused by an external physical force resulting in permanent total disability.

 

The worker, however, can sue third parties for damages, such as an owner or a general contractor if there is a violation of law or statute by one or more of those third parties. The third party can in turn sue the employer for contribution, indemnity, and defense, provided that there is a written contract providing for that obligation between the employer and the owner or general contractor.

 

Labor Law § 200 Liability. This codifies the common law duty to provide employees with a safe place to work. To prevail, a plaintiff must establish that the defendant owner or contractor

1. exercises a sufficient degree of supervision over the manner and method of the work that was performed, or

2. his/her injury was caused by a defective condition on the premise and “the owner or general contractor created or had actual or constructive notice of the hazardous condition.”

 

Labor Law § 241(6) liability. This statute imposes a nondelegable duty upon owners and contractors to “provide reasonable and adequate protection and safety” for workers and to comply with the specific safety rules and regulations promulgated by the (New York State) Commissioner of the Department of Labor.

 

To prevail, a Plaintiff must demonstrate that a specific and positive command of the Industrial Code rule or regulation was breached. Unlike Labor Law § 200, there is no requirement to prove either control and supervision, or actual or constructive notice. The duty is not absolute—the acts and actions of the worker are to be considered in comparison, and work site standards and customs are also to be considered.

 

Labor Law § 240 liability. New York is the only State that has a strict liability statute that holds

Owners, Contractors, Subcontractors jointly and severally strictly liable for safety of the work site. The statute, interpreted by New York Courts, provides protection to workers from certain elevated or gravity related hazards for which adequate safety devices must be provided.

 

Unlike other Labor Law provisions, the statute is nondelegable, and control, direction, or supervision of the work by the owner or contractor is not a necessary condition of liability. In addition, evidence of industry practice, rules and regulations, contracts or custom and usage, or actual or constructive notice, is immaterial.

 

Unless the Plaintiff is found to be a recalcitrant worker or be the sole proximate cause of his/her injuries, strict joint and several liability can result.

 

As this claim can be established without corroboration, i.e., by the injured worker’s testimony alone, there is a challenge in defending the claim. A defendant is at times challenged by embellished or even fraudulent claims.

 

Insurance Carrier Litigation.

 

After a Plaintiff’s Labor Law lawsuit is filed, or after a claim is made, defense begins with tender demands. A defendant in a lawsuit may tender the defense and indemnity to another third party either by virtue of contract or by common law. To the extent that a tender is believed to be wrongfully disclaimed, that defendant may “third-party” that other party into the case. The defendant, if it was provided by contract with insurance, and the carrier refuses to honor that agreement, may also bring on an action against the carrier. A carrier may bring its own Declaratory Judgment action to establish that it is not obligated to provide a defense or provide indemnity. The duty to provide a defense is broader than the duty to indemnify so sometime a carrier may make an agreement to provide a defense with reservations of rights.