As a general rule, worksite accident injury claims fall into three (3) categories: (1) defendants' liabilty for general unsafe worksite conditions; (2) defendants' liability for violating specific, statutorily defined and regulated worksite conditions under the Industrial Code; and, (3) defendants' liability for violating a specific statute governing worker safety.
Under Category #1 (General Negligence), the plaintiff must prove two (2) things:
- The defendant was able to exert control over the worksite - generally, this may include the owner, lessee, contractor or subcontractor (or one of their agents) of a job site. Bear in mind, however, that if the plaintiff received workers' compensation beneifts due to the injuries he sustained in this accident, he is barred by law from suing his employer (see, Construction Site Injuries and New York's Labor Laws, supra). Consequently, in many instances workers may be left without a viable defendant to sue for their personal injuries that they sustained at a construction or work site.
- That the defendant knew (or should have known) that the work site and/or condition was unsafe - Under the general, common provisions of New York's Labor Laws (generally known as Section 200), the plaintiff must prove not only that the worksite was dangerous, but that the defendant actually knew, or in the exercise of proper diligence, should have known that the site was unsafe, yet failed to take the necessary precautions to correct this problem, and thereby prevent plaintiff's accident from occurring.
Category #2 - Labor Law 241 (Industrial Code Violations):
In contrast, under Category #2, oversight or control of the worksite is not a required element of the plaintiff's burden of proof. Nor, for that matter, is the plaintiff required to show that this particular defendant knew or should have known about the violation of the Industrial Code, as long as plaintiff can prove that anyone in the construction chain knew or should have known about the Industrial Code violation. In other words, the defendants' responsibilities (i.e., liabilities) under this category cannot be delegated away.
As part of this proof, the plaintiff must also show that his injury arose out of a work-related activity that is covered by the statute, such as erection, construction, repair, alteration, maintenance, or the moving or painting of buildings. The courts have extended these definitions to include excavation and demolition as well.
Category #3 - Labor Law 240 (1) (Violation of Worker Safety Statute):
Finally, in the last category, a defendant will be held absolutely liable, i.e., regardless of whether the plaintiff or that defendant was at fault, for the plaintiff's injuries, if the failure of safety devices such as scaffolding, pulleys, or ladders to protect the plaintiff against elevation-related hazards associated with painting cleaning, demolition, erection or repair played a significant role - however small - in causing the accident. Importantly, the owners of one or two-family dwellings are not governed by this statute.
As you have probably guessed, the last category is particularly strict because the legislature meant to assure that all workers involved in these dangerous types of work are afforded proper protective devices.