Injured on a Construction Site When You Do Not Work There

Can You Sue If You Were Hurt on a Construction Site But Do Not Work in Construction?

Yes. You may have a weaker statute and a stronger set of facts than the workers around you.

New York's Scaffold Law is written for a defined group, and if nobody in the construction chain hired you, you are probably not in it.

That is the honest answer, and most pages on this subject avoid giving it.

What you almost certainly do have is a common law negligence claim, plus a claim under Labor Law § 200, against the same owner and general contractor a worker would sue.

Those claims require proving fault, which the Scaffold Law does not. They also reach hazards the Scaffold Law never touches, and the defendants carry the same insurance either way.

Call (888) 713-6653 for a free review of your claim. There is no fee unless we win.

Who the Scaffold Law Actually Protects, and Why That Excludes Most Visitors

Labor Law § 240(1) requires owners and contractors to furnish and operate safety devices so as to give proper protection to "a person so employed."^[1] That phrase is doing all the work.

New York courts read it as creating a special class, and membership has two requirements rather than one. The injured person has to show both that he was permitted or suffered to work on a building or structure, and that he was hired by someone, whether the owner, a contractor, or their agent.

Two people can stand in the same spot and get different answers. An electrician employed by a subcontractor is in the class, because the chain hired him. A food courier bringing lunch to that electrician is not, because nobody hired the courier to work on the building.

Where people usually land:

• Generally covered. Employees of any contractor or subcontractor on the project, including trades that have nothing to do with the specific hazard that hurt them, and workers who stayed past the end of a shift.
• Fact-dependent. Materials delivery drivers, particularly where the driver was doing more than dropping a pallet at the curb and participated in unloading or hoisting as part of the work.
• Generally not covered. Food and package couriers, building tenants and their guests, prospective buyers, utility and agency inspectors on a walkthrough, and anyone whose presence is unrelated to performing the work.

If you are in the first group, the analysis on our page about Labor Law § 240 and the Scaffold Law applies to you directly, and it is a materially better statute than the one described below.

The Claim You Do Have: Labor Law § 200 and Common Law Negligence

Labor Law § 200 codifies the common law duty to provide a reasonably safe place to work, and it reaches people lawfully on the premises rather than construction employees alone. Alongside it sits ordinary premises liability against the property owner.

The trade-off is straightforward. These claims require proving fault, which § 240(1) does not, and comparative negligence applies, which it does not under § 240(1). New York still uses pure comparative negligence for construction and premises claims, so a share of fault reduces a recovery rather than ending it.

Fault is usually proved one of two ways, and which one applies decides who the real defendant is.

• A dangerous condition on the property. Here the owner or contractor is liable where it created the condition or had actual or constructive notice of it and failed to remedy it. Debris in a walkway, an unbarricaded excavation, an unlit corridor, a missing cover over a floor opening, standing water, or an exposed conductor.
• The means and methods of the work. Here liability turns on supervision and control. A party that only had general oversight authority is usually out; a party that actually directed how the injuring work was performed is in.

That distinction is not academic. It is the difference between suing the owner and suing the subcontractor whose crew created the hazard, and it is why these cases get pleaded against everyone in the chain at the outset and narrowed later. Our page on owner, general contractor, and construction manager liability covers how New York sorts that responsibility.

How People Who Do Not Work There Get Hurt on New York Job Sites

These claims cluster around the places where an active site meets the people who have to walk through it.

• Falling debris, tools, and material. Dropped from upper floors, off a hoist, or over the edge of a deck, onto a sidewalk, an entryway, or a shared corridor.
• Sidewalk shed and scaffold failures. Collapses, falling components, and inadequate lighting under a shed. Covered in depth on our page about sidewalk shed and construction debris injuries to pedestrians.
• Trips and falls in and around the work. Extension cords, hoses, uneven temporary walkways, unmarked level changes, debris in a path of travel, and ice on a poorly maintained temporary entrance.
• Falls into unguarded openings. Floor openings, trenches, vaults, and hoistways left uncovered or barricaded with nothing more than caution tape.
• Struck by equipment and vehicles. Backing trucks, forklifts, skid steers, and material handlers operating where pedestrians and deliveries share space.
• Tenants in an occupied building under renovation. Residents and office workers hurt in a building being altered around them, where the contractor controlled the hazard and the landlord controlled the premises.
• Delivery drivers in loading and staging areas. Injured while unloading, on a defective ramp or dock plate, or by material handled badly by someone else's crew.

What These Claims Can Recover in New York

New York does not cap compensatory damages, and a negligence claim recovers the same categories a Labor Law claim does. The difference is in what has to be proved, not in what is available.

• Medical expenses, past and future. Emergency care, surgery, rehabilitation, equipment, and projected future treatment.
• Lost earnings and lost earning capacity. Including the longer-term loss where an injury changes what work is possible.
• Pain and suffering. Ordinarily the largest component, and valued against what New York appellate courts have sustained on comparable injuries.
• Loss of enjoyment of life. A separate element under New York law.
• Household services and future care. The help an injured person now has to pay someone else to do.
• Loss of consortium. A spouse's independent claim.
• Wrongful death and survival damages. Where a site injury proves fatal.

One caution specific to this group. If you were hurt while working for an employer that is not part of the construction project, a delivery company for instance, you may have a workers' compensation claim against your own employer and a third-party claim against the construction defendants at the same time. Those are separate cases and the compensation carrier will assert a lien on the recovery.

 

The Statute Is Narrower Here. The List of Defendants Is Not.

People in this position are told constantly that they have no case because they were not construction workers. The statute is narrower for them. The list of defendants is not.

• A New York attorney, not a referral desk. Don Worley has been admitted in New York since 2005 and has spent more than twenty years trying serious injury cases.
• The ownership question answered first. Whether a public entity is behind the project decides whether you have three years or 90 days, and it gets checked immediately.
• DOB and permit records pulled early. Violations, stop work orders, complaints, and inspection history establish notice from documents rather than from argument.
• Every contract in the chain reviewed. Owner, general contractor, construction manager, and the subcontractor whose crew created the condition are separate defendants with separate policies.
• Four independent lists, one firm. Best Lawyers in America, Super Lawyers, the Million Dollar Advocates Forum, and the National Trial Lawyers have each recognized our attorneys.
• Forty thousand cases of pattern recognition. More than 40,000 handled claims and over $100 million recovered means we have usually seen your insurer's argument before it arrives.