Legal Options & Rights of Injured Construction Workers

An in-depth look at the main legal options for workers in the construction industry who have been injured on the job.

Construction is an inherently dangerous profession. But that does not mean that construction workers must simply accept the risk of injury as an occupational hazard. On the contrary, state and federal laws promote construction worker safety. When a worker is injured on the job, that worker will almost always have some avenue of legal relief available -- to receive compensation from an employer or from another party -- as a result of on-the-job injuries.

Laws vary by state and apply differently to various injuries, but there are three main legal options for injured workers:

  • a workers’ compensation claim
  • a personal injury lawsuit, and/or
  • a products liability lawsuit.

One or more of these options may be available to an injured worker. Each option is discussed separately in the sections that follow.

A Workers’ Compensation Claim

Workers’ compensation rules provide that when an employee is injured at work, he or she is entitled to payment for most losses caused by the injuries. These claims are typically paid through insurance coverage that most employers are required to carry. Workers' compensation is a no-fault system, meaning an injured employee will be entitled to payment regardless of whether the employer did anything to cause the injury. As a result, in most states, an employee will be able to collect workers’ compensation for almost any injury occurring on the job.

The amount of compensation available through workers compensation is almost always less than the amount that would be available in a personal injury lawsuit (were that remedy available). But employees cannot opt out of workers’ compensation. It's an exclusive remedy in most cases.

Personal Injury Lawsuit

Workers’ compensation rules only apply in the context of the direct employer-employee relationship. Think of how many people and entities are involved in most construction projects: a general contractor, a property owner, multiple subcontractors, an architect, engineers, material suppliers. If an injured construction worker wants to step outside of the workers’ compensation system, that worker need only prove that some person or entity other than the worker’s direct employer is wholly or partially liable for the incident that led to injury.

In order to win a personal injury lawsuit for harm caused in a construction accident, a worker must prove three elements:

  • the defendant had a duty to provide for the safety of the worker
  • the defendant failed to meet that duty, and
  • the defendant's action (or inaction) caused injury to the construction worker

Any entity that exercises decision-making power at a construction site usually has a duty to provide for worker safety -- not just general contractors, sub-contractors, etc. So, if the owner of a building under construction regularly directs workers regarding what to do and how to do it, that owner may be liable for unsafe work conditions.

Any failure by the defendant to properly provide for the safety of a worker might amount to negligence. Any violation of OSHA regulations or other industry safety standards will generally be considered a breach of the duty of care. Breaches can be in the form of actions or omissions. For example, a defendant might be liable for the action of providing an unsafe scaffold. A defendant might also be liable for the omission of failing to properly train an employee regarding safe lifting practices.

In construction injury cases, the most common types of damages include:

  • expenses for medical treatment, physical therapy, and any other care necessitated by the injury
  • lost wages (for time missed from work due to the injury)
  • pain and suffering, and
  • loss of normal life (the decreased quality of a person’s life as a result of the injury).

Product Liability Lawsuits

Sometimes, a worker may be injured by a defective piece of equipment or construction material. In such a situation, the designer, manufacturer, or seller of the piece of equipment may be liable for the worker’s injuries. In order to prevail in a products liability lawsuit, an injured construction worker must prove three elements:

  • that the equipment was unreasonably dangerous when it left the defendant’s control
  • that the equipment was being used in a foreseeable manner at the time of the injury, and
  • that the defect caused the harm to the worker.

Unreasonably Dangerous.  If a designer, manufacturer, or seller sells a piece of equipment with an unreasonably dangerous defect, that entity may be liable for any injuries that result. There is no requirement that the defendant knew of the defect or that the defendant did anything wrong to create the defect. All that matters is that the equipment was defective when it left the control of the defendant.

As an example, imagine that due to uncontrollable circumstances, a manufacturer’s machinery malfunctioned and over-pressurized the fuel tank of a forklift. The manufacturer then sold the forklift to a roofing company. While an employee of the roofing company was operating the forklift at a construction site, the tank exploded. Even though the manufacturer may not have acted negligently, it will still likely be liable for the worker’s injuries because the forklift was defective when it left the manufacturer’s control.

Foreseeable Manner.  Designers, manufacturers, and sellers usually escape liability when their equipment is modified or used improperly. For example, imagine a worker straps rocket boosters to a forklift to increase speed. The forklift topples over when the worker tries to turn, injuring the worker. The worker will probably not be able to sue the manufacturer of the forklift because the employee was using the equipment in an unforeseeable manner.

Harm.  The same damages provisions that apply to personal injury cases (discussed above) generally apply to products liability cases.

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