CONSTRUCTION AND INDUSTRIAL ACCIDENTS

Workers injured on a construction site or in an industrial setting will have the remedy of workers’ compensation.  However, many workers may not realize of that often they have a potential action against third parties other than their employer for injuries and damages arising out of such an accident.  While workers’ compensation is generally the exclusive remedy available against an employer for injuries sustained while on the job, it does not relieve other individuals or entities from liability for their role in causing the injuries. 

Just because you or a friend or family member is injured while on the job is not a reason to consult with an attorney specializing in personal injury rather than workers compensation law.  Our firm has handled numerous cases involving accidents occurring on construction sites or in an industrial setting.  We do not handle workers’ compensation cases (although we have several very competent firms that we make referrals to in that regard) but we do litigate cases against third party defendants whose negligence or fault has contributed to an on the job injury.

There are several ways these cases typically arise:

Multi-Employer Work Sites:  Construction sites, for example, often have many workers in many trades working at the same time.  Accidents can occur when one trade, through its workers or practices, creates a dangerous condition or otherwise negligently contributes to an injury sustained by a worker in another trade.  For example, a roofing contractor whose negligence injures a plumber is liable for damages, despite the fact that the injured plumber may also receive workers’ compensation benefits.  Moreover, the property owner, developer and general contractor may also be liable for injuries sustained by workers due to a dangerous condition of the work premises or a failure to adequately implement safety precautions or exercise appropriate supervisory duties.  Accidents that occur in a multiple employer environment are frequently the subject of both workers’ compensation and third party liability actions.

Product Liability: Where a worker is injured due to the defective nature of a product manufactured by a third party other than the employer, the injured worker has a claim, independent of any workers’ compensation remedy, against that third party product manufacturer.  It is often the case that a worker may be injured due to the malfunctioning of a piece of equipment or a tool used on the job.  If the defective product is a substantial factor in causing the injury, the employee has a viable claim against those responsible for manufacturing and selling that defective product.

Employer’s Failure to Obtain Workers’ Compensation Coverage: In California, it is mandatory that every employer have workers’ compensation insurance with a few narrowly construed exceptions that allow for “self-insurance.”  Where the employer fails to obtain insurance or self-insured status, an injured worker has a right to sue the employer, just as he or she might sue a third party, for injuries sustained during the course and scope of the employment relationship.  The law will imply a presumption of employer negligence and causation under such circumstances, and all damages otherwise available to a plaintiff in a civil action, not just those available in a workers’ compensation actions, can be recovered.  Therefore, the first question that should be asked in an industrial accident is whether or not the employer has complied with California law on workers’ compensation coverage.

The “Dual Capacity Doctrine”:  When an employer is in the business of manufacturing a product or rendering a service that is provided to the employee and due to the defective nature of such product or the negligent delivery of such service, the employee is injured, the law will not restrict the employee’s remedy to workers’ compensation where it is found that the employer was operating in a “dual capacity” - on one hand as an employer but on the other hand with the employee as a regular and ordinary consumer of the employer’s products or services.

Assault or other conduct outside the course and scope of employment: Where an assault occurs in the workplace perpetrated by the employer (or an agent thereof) or by another employee whose conduct is ratified by the employer, the victim has a civil action apart from the limitations of the workers’ compensation system.  An employer may be held to ratify the conduct of another employee in multiple ways, including knowingly allowing such conduct to occur or failing to discipline for such conduct.  Similarly, conduct engaged in by the employer that causes injury to an employee will be subject to ordinary tort liability rather than the more restrictive provisions of the workers’ compensation system.

Fraudulent concealment of injury or its cause:  An employer who fraudulently conceals the existence of an industrial injury, or the fact that it was related to the employment relationship, may be held to have voided the exclusive remedy provisions of Labor Code section 3600 and be held liable in a separate civil action.

If you are injured in an industrial accident, it is highly recommended that you consult with an experienced personal injury lawyer to determine whether or not your remedies are restricted to workers’ compensation or whether you may be entitled to pursue the broader remedies available under tort law.