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Texas Commercial Construction Site Injury Caused by Subcontractor

craneIn a recent Texas construction case, the court considered injuries arising from the collapse of a crane on a commercial construction site. The issue the appellate court examined was whether the plaintiff was prevented from obtaining damages under common law, due to the Texas Workers’ Compensation Act.

The case arose when the superintendent for the general contractor on a big construction project was injured in connection with the installation of pilings. To install pilings, the crew drilled a hole in the earth and then pumped grout into the hole. A steel rebar cage was dropped into the grout, which hardened around the cage to form a piling. Heavy machinery is used to build the piling. One of the subcontractors had adopted several policies to make sure the pilings were finished safely.

After a piling was completed, the crew had several cubic yards of grout left over, but the grout was insufficient to fully complete another hole. The superintendent of the subcontractor ordered the crew to start another piling. The foreman opposed this plan but agreed to follow it anyway. The superintendent of the subcontractor left, and grout was pumped into a new hole on the assumption that another shipment of grout would be arriving soon. That shipment was delayed, and the grout started to harden. When the grout finally arrived and was mixed into the old grout, the pressure under the old grout built up and caused the augur to shoot up. The cable backlashed, and the augur got stuck.

They tried to unstick the augur. The superintendent was angry that the augur got stuck when he returned and told the foreman to step aside. He tried to tell the crane operator how to fix the situation. However, when he advised the crane operator to hoist the augur with the crane, the crane fell out of balance trying to lift a load beyond its capacity. He was warned by multiple people, but eventually the boom bent, snapped, and crashed down. The leads toppled away from the crane, fell on the plaintiff’s leg, and pinned him to the ground. His leg was crushed and severed, so he needed a prosthetic.

The plaintiff got workers’ compensation benefits but sued the subcontractor, asking for a greater recovery at common law, and he was awarded $35 million in actual damages and $8.5 million in exemplary damages.

The subcontractor appealed. The appellate court explained that an employer’s immunity under the workers’ compensation law extends to his servants, such that co-employees of an injured employee are also protected from being sued at common law. There is an exception under the statute, which is that if an employee suffers a fatal injury due to an intentional action or omission of the employer or its gross negligence, the employee’s surviving heirs aren’t stopped from getting exemplary damages.

The appellate court explained that if the exclusive remedy provision of the Workers’ Compensation Act applied, there would be a statutory bar to the plaintiff’s lawsuit. The subcontractor was not the plaintiff’s employer, nor a co-employee. It explained that the general contractor agreed to give workers’ compensation insurance to its subcontractors and their employees, using a contractor-controlled insurance program. The subcontractor at issue was enrolled in the program. Therefore, the plaintiff’s employer was the subcontractor’s statutory employer, and the plaintiff was its statutory co-employee. As a result, the subcontractor could rely on the exclusive remedy provision and was exempt from negligence and gross negligence claims but not intentional act claims. The superintendent who had caused the accident counted as a vice principal, and his actions could be imputed to his employer.

It reasoned that the evidence supported a finding that the superintendent knew his actions weren’t safe. However, the injury was substantially certain only for somebody in the fall path, and a reasonable fact finder wouldn’t be able to decide that the superintendent knew what the fall path was going to be. For these and other reasons, it reversed the judgment for the plaintiff.

If you are hurt in a construction or workplace accident, the experienced San Antonio attorneys at Carabin & Shaw may be able to represent you and develop a sound strategy for handling your case. Call our office for more information at 1-800-862-1260.

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