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Articles Posted in Construction Site Accidents

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In Lopez v. Wildcat Cranes, a welder on a demolition project was injured. The welder was cutting a large steel beam, weighing thousands of pounds, which was located 25 feet above the surface of the roof, and removing it from the ceiling structure. The welder used a scissor lift to reach the beam, and another worker was going to cut the other end as soon as the welder finished cutting.

A crane was necessary to extract the beam. A company called Wildcat Cranes provided the crane, and its employee operated it. The one provided had a 12,000-pound capacity. The operator relied on a lift director to estimate the weight of the beam and direct the extraction by radio. The operator had the final decision as to whether the beam was within the crane’s capacity to lift. In this case, the lift director estimated the weight was 12,000 pounds, so he told the operator to apply a 6,000-pound counterweight. The estimate was not right.

As the beam was being cut, the operator knew something was wrong. The cab in which he was sitting began shaking, and a safety alarm went off, among other things. On the roof, the beam once cut fell four feet, and either it snagged the welder’s safety lanyard or hit the scissor lift. The welder was thrown from the platform and hung there by his safety lanyard. He climbed back on the platform without getting hurt.

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In Maldonado v. Sumeer Homes, the plaintiff appealed from three summary judgments in a personal injury action. The case arose from injuries the plaintiff suffered while working as a sheetrock installer on stilts during Sumeer Homes’ construction of a home. He tripped and fell on a stack of sheetrock. The plaintiff was working for Arturo Galvan, who’d been hired by a drywall subcontractor, who was in turn working for Sumeer Homes. The sheetrock was delivered and stacked by Moises Aguilar.

After the accident, the plaintiff sued the builders and Arturo Galvan for negligence and gross negligence. He alleged that the sheetrock had been placed negligently and that the defendants failed to warn of the danger. He also alleged that he was told to work on stilts, even though the sheetrock was negligently placed on the ground, and that all the defendants were responsible for supervising and keeping safe the workers on the job.

The builders moved for summary judgment. They challenged the breach of duty and proximate cause aspects of the plaintiff’s claims. They also argued that he had no evidence that they violated a statute for his negligence per se claim, among other things, and all three motions were granted. The plaintiff appealed.

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In Joyce Steel Erection, Ltd. v. Bonner, a Texas appellate court considered a plaintiff who was pinned by an extremely heavy concrete tilt wall at a construction site. He suffered serious injuries and needed numerous expensive surgeries. He sued Joyce Steel Erection, Ltd., Caruthers Construction, and Self Concrete, Inc. Joyce didn’t settle, but the others did.

The plaintiff proceeded to trial against Joyce. The jury found $3.5 million in past damages and $3.5 million in future damages. It determined the defendant was 34% at fault, the plaintiff was 34% at fault, and the plaintiff’s employer was 33% at fault. The trial court entered judgment against Joyce after deducting for the other parties’ degree of fault and the settlement amounts.

The defendant appealed, arguing that the trial court should have excluded any damages that could be attributed to the plaintiff’s employer and for failing to follow a particular formula in calculating prejudgment interest.

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In Hassan v. Rock, a plaintiff appealed from a judgment awarding him $212,136.64 in damages because he didn’t think the trial court should have reduced the award by his proportionate responsibility for the accident. The defendant had hired the plaintiff as a day laborer to clear brush out of an empty lot that belonged to the defendant’s friend. The defendant used a Bobcat loader, and the plaintiff crouched under the bucket. The bucket fell and hurt the plaintiff.

The plaintiff sued the defendant for negligence and gross negligence. The plaintiff objected to submitting proportionate responsibility questions to the jury, claiming that proportionate responsibility didn’t apply because the defendant was his employer but didn’t have workers’ compensation insurance as required under Tex. Lab. Code § 406.033(a)(1).

Nonetheless, the trial court submitted the questions related to the plaintiff’s responsibility for getting injured to the jury. The jury found that the defendant was 57% responsible and the plaintiff was 43% responsible. The plaintiff moved to disregard the jury’s answers to the proportionate responsibility questions. The trial court denied the motion and rendered a judgment reducing the plaintiff’s damages award by 43%. The plaintiff appealed.

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Exemplary damages (also known as punitive damages) are unusual, but may be awarded in personal injury cases involving gross negligence. In contrast to compensatory damages such as lost wages, medical bills and pain and suffering, exemplary damages are meant to punish a defendant for egregious behavior. In 4Front Engineered Solutions, Inc. v. Rosales, the defendant appealed from a judgment for the plaintiff of over $10 million, including exemplary damages, in a personal injury lawsuit based on a forklift accident.

The defendant was a designer and manufacturer of equipment for loading docks and ran a warehouse in Texas. The warehouse manager hired an electrician to repair the illuminated business sign in the front of the warehouse. The electrician asked the plaintiff, also a licensed electrician, to help him to do this work. The warehouse manager allowed the first electrician to borrow a forklift to get the job done.

On the second day, the first electrician was working on the forklift, moving it back and forth so the plaintiff standing on a platform could reach the electrical connections. A forklift’s wheel rolled off the sidewalk. The forklift tipped and caused the plaintiff to fall 25 feet to the ground. He suffered injuries to his spinal cord, brain, hip and leg.

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Under Chapter 95 of the Texas Civil Practice and Remedies Code, property owners will not be liable when a contractor or a subcontractor or its employee is hurt on a property owner’s property while performing repairs or construction. A property owner under the chapter is someone who owns real property that is primarily used for commercial or business purposes. The exception is when a property owner exercises or keeps control over the manner in which the work was performed, and the property owner had actual knowledge of the danger or condition resulting in the injury. At trial, a property owner will have to show that chapter 95 applies to the case.

In Rosa v. Mestena Operating LLC, a man and his wife sued a property owner for negligence and premises liability after the man suffered an on-the-job injury. The accident happened when the man was hurt at work while performing maintenance on electrical poles for his employer, a maintenance company. A utility company had an easement on the property and contracted with a maintenance company to perform maintenance on the poles.

The defendant, Mestena Operating LLC, was an operator of oil and gas wells that had a mineral lease on the property where the electrical poles were located. There was no contractual relationship between Mestena and the man’s employer. The plaintiffs claimed that the man had contacted an energized ground wire and suffered electric shock on the job. The ground wire was linked to equipment on the mineral lease. The plaintiffs theorized that the Mestena equipment, which was about 1,400 feet from the place where the plaintiff was located, had malfunctioned, causing the ground wire to be energized. The plaintiffs argued that Mestena knew or should have known about the danger of the ground wire. Continue reading →

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In ENGlobal U.S. Inc. v. Gatlin, a Texas appellate court was asked to decide whether a party to a contract with an arbitration clause could compel arbitration of a personal injury claim by a nonparty to the contract under the doctrine of “direct benefits estoppel.” The case arose from Phillips 66’s ownership and operation of an oil refinery. The operator of the refinery had contracted with Clean Harbor, an industrial service contractor, to clean oil storage tanks at the refinery.

An employee of the industrial service contractor was working as a hydroblaster at the refinery. While working, the lanyard on his safety harness got caught in the walkway, resulting in his fall and back injury.

When the accident happened, ENGlobal was a contractor that performed engineering for Phillips 66. Their relationship was governed by a master service agreement that included an arbitration provision. The employee had not signed this agreement, and he sued Phillips 66, ENGLobal, and another company in order to recover damages. He alleged negligent undertaking and premises liability. Continue reading →

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The Texas Court of Appeals recently found an employer liable for an employee’s injuries due to its failure to maintain workers compensation insurance. As a result, the employer was required to pay the injured employee the amount of $310,607.48 for injuries sustained from a forklift accident on the job site.

In JC General Contractors v. Chavez, Teodoro Chavez worked as a laborer on a construction site for J.C. General Contractors in May 2006. Equipment for the site included a forklift with a basket attached that was used to lift workers to higher parts of the structure. On the day of the accident, the construction superintendent told Chavez to get into the basket to be listed up to take measurements. Chavez was unable to secure the basket, which was attached to the forklift by chains, because the superintendent had forgotten the key to the chain locks. While Chavez was wearing a safety harness, it was attached to the basket, not the forklift. When the basket was raised to a height between 10 and 20 feet, it fell forward and as a result, Chavez suffered a broken collarbone, bruised lungs, internal bleeding in his liver, two fractured ribs, a broken wrist that required surgery, a fractured skull, and a traumatic brain injury that resulted in memory loss and other mental issues.

Because J.C. General Contractors did not have workers compensation insurance, Chavez was not barred from filing a lawsuit. At trial, it was established that the forklift was not designed to lift laborers. However, J.C. General Contractors argued that Chavez was responsible for the accident due to his taking cocaine earlier that day. One of his coworkers testified that he saw Chavez snorting cocaine that morning, and that he was acting hyper, jumping up and down in the basket right before it fell. A blood test confirmed that Chavez tested positive for cocaine, and Chavez admitted to using it, but claimed he had done so four days prior. The trial concluded with the jury determining that Chavez’s intoxication was not the cause of the injury, but rather the superintendent’s misuse of the forklift. The jury awarded $100,000 for physical pain and mental anguish sustained in the past and to be sustained in the future, more than $135,000 for medical care, $50,000 for physical impairment, and $25,000 for lost earning capacity. J.C. General Contractors appealed.

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Recently, Municipal District Services, LLC in Cypress, Texas was cited by the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) for willful violation of health and safety laws. The reason was due to a trenching collapse that led to one worker’s death and another’s injury.

The tragic accident occurred when workers were attempting to repair a water main. Municipal District Services excavated a 16-foot long, five feet wide trench through a concrete road. Two workers went into the trench to clean and cut a broken pipe. Yet roughly 10 minutes later, the south wall of the trench caved in.

In citing Municipal District Services, OSHA’s area director stated that while excavating and trenching may be hazardous, they can be performed safely through use of proper safety equipment like trench boxes. The willful violation was given for failing to give vulnerable workers cave-in protection when working in an excavated area or trench. A violation is considered to be willful when the company does so intentionally, knowingly or with voluntary disregard for the law, or with indifference to the health and safety of workers. Municipal District Service’s willful violation carried a penalty in the amount of $63,000. The company now has 15 days from receiving the OSHA citation to do one of the following: comply with the requirements, request a conference with the San Antonio office of OSHA, or contest the citation in front of the Independent Occupational Safety and Health Review Commission.

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An August 2013 court decision by a federal appeals court brings attention to the impacts of Texas being one of two states in the country that allows companies to opt out of the state’s workers’ compensation system. In the case, Mary A, Ernewayn v. Home Depot U.S.A., Inc., Mary A. Ernewayn, a Home Depot employee in Texas filed sued against Home Depot in Texas state court, alleging that the company was negligent. Ernewayn claimed she suffered neck and back injuries while operating a lumber cart in a Home Depot store. Home Depot sought to remove the case to federal court based on the fact that the company had opted out of the Texas workers’ compensation system.

In August 2013, however, a federal appeals court panel denied the company’s request to defend itself from a workers’ compensation claim in federal court. More specifically, the federal court affirmed the lower court’s finding that even though Home Depot did not subscribe to the Texas state workers’ compensation system, the state’s workers’ compensation law still limited the number of common law defenses the company could assert.

The Opt-Out System in Texas

Most states require employers to carry a workers’ compensation insurance policy to cover any costs such as lost income or medical bills should an employee become injured while at work. This means that, in most states, if someone is injured on the job, he/she can file a claim. If the claim is approved, the employee is entitled to payment of his/her medical bills and compensation to cover lost wages and disability.

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