Filing a Wrongful Death Lawsuit After a Construction Accident

If a worker is killed in a construction accident, a wrongful death lawsuit may be filed by his or her family members.

According to the Occupational Safety and Health Administration (OSHA), 18.5% of all workplace deaths in the United States occur in the construction industry (that's more than in any other industry). OSHA categorizes the top four causes of death in the construction industry as “the fatal four” because together they account for 57% of all construction industry deaths. The fatal four categories are:

  • falls
  • electrocutions
  • struck by object, and
  • caught in/between.

In most situations, immediately after the death of a loved one, a lawsuit is the furthest thing from the minds of close family members. No lawsuit can rectify the error or bring the loved one back. But after the weeks and months following the death, it may be worth looking into a legal remedy if the death was linked to negligence in the construction industry.

In the sections that follow, this article will discuss the complex body of law surrounding construction cases arising out of the death of a worker, specifically, the difference between a wrongful death and a survivor action, as well as the effect that workers’ compensation laws may have on the case.

Wrongful Death and Survivor Actions

There are basically two different potential lawsuits that arise when a construction worker dies as a result of a job related injury:

  • a wrongful death action, and
  • a survivor action.

In the vast majority of cases, the deceased worker's family files both claims in the same case. The two differ mainly in the type of damages that are available.

Wrongful Death Actions. By filing a wrongful death claim, the family of the deceased worker basically makes the following argument:

  • The worker died because of the defendant’s negligence.
  • The worker had very close family members.
  • The family members suffered losses (detailed below) as a result of the death.
  • Therefore, the defendant responsible for the death should compensate the close family members for their losses.

So, in a wrongful death action, the family does not sue for harm caused to the deceased person. Rather, the family members sue for harm that was actually caused to them as a result of the loss of a loved one. These damages can include:

  • loss of quality of life
  • loss of love and emotional support, and
  • loss of financial support.

Survivor Actions. By filing a survivor claim, the family of the deceased worker basically makes the following argument:

  • The worker died because of the defendant’s negligence.
  • The negligence caused pain and suffering to the worker before the worker died.
  • If the worker had survived, he or she would have been able to sue the defendant and recover compensation for the pain and suffering.
  • The defendant should not be able to escape liability for pain and suffering simply because the worker died.
  • Therefore, the defendant responsible for the death should have to pay the damages for pain and suffering to the deceased worker’s estate.

The survivor claim is somewhat unfortunately named, since it is only available after someone has died. The idea is that when a person is harmed, that person has a right to a lawsuit, and that right should not die with the person. Therefore, the right to sue “survives” the person’s death. So, the estate of a deceased person can recover damages for the pain and suffering of a worker prior to the worker’s death.

For more detail on this area of law, see Survival Actions vs. Wrongful Death Claims.

Workers’ Compensation Laws

Workers’ compensation laws prevent injured workers from suing their employers in standard courts. As an alternative, these rules, which are in place in every state, allow workers to be compensated for injuries out of an insurance fund that most employers are required to pay into. A workers' compensation claim is made in a no-fault environment -- meaning there's no need to establish that anyone was negligent -- but typically the amount of compensation available to an injured worker is less than would be available in a standard lawsuit.

So, how do these laws affect wrongful death and survivor actions? That is a very tricky question. The answer varies significantly by state.

States Where Workers’ Compensation Rules Do Not Apply. The courts of some states have held that once an employee dies, resulting lawsuits are not affected by workers’ compensation rules. In these states, the family of a deceased worker may file lawsuits in state court and seek damages in wrongful death and survivor actions, as described earlier in this article.

States Where Workers’ Compensation Rules Do Apply. The courts of other states apply workers’ compensation rules to lawsuits against an employer arising from an employee’s death. As a result, recoveries by family members may be limited (though they are rarely completely banned).

In the event that a family faces a limited recovery as a result of workers’ compensation laws, it is worth considering suing a party other than the employee’s direct employer. Let’s assume that the worker, a roofer, died from falling off of the roof of a home being renovated. The liability of the worker’s direct employer, the roofing company, might be limited by workers’ compensation laws, but the general contractor, which hired the roofing company would not be protected by the workers’ compensation laws of most states. Therefore, the family might be able to obtain a recovery against the general contractor, outside of the confines of workers' comp.

In short, there are sometimes ways to avoid the effects of workers’ compensation laws. But those laws can be extremely complicated and they vary by state. As a result, anyone considering a lawsuit as a result of the death of a construction worker is well-advised to consult an attorney who has experience in construction accident cases.

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