Loved ones of those killed in work-related accidents are almost always going to be entitled to workers’ compensation death benefits. While this is held as the exclusive remedy for injured workers and their families, there may also be some instances where third-party negligence lawsuits may be appropriate.

roofdeckIdentifying potential defendants in these situations, particularly when the worker died on a multi-employer work site, can be complex. Florida law is careful to relief general contractors of liability in these cases, so long as they had secured workers’ compensation coverage for subcontractors. However, there may be some exceptions, and it’s not always easy for grieving loved ones to know their options.

There may be certain statutory time limitations on these claims as well, so it’s critical to contact an experienced work injury lawyer as soon as possible after the accident.

The recent lawsuit of Gaytan v. Wal-Mart, weighed by the Nebraska Supreme Court, shows how these cases can take several twists and turns. This one has yet to reach its final conclusion, but the high court did partially reverse a lower court judgment, allowing the worker’s widow to continue her negligence case against a subcontractor.

As our Cape Coral workers’ compensation lawyers understand it, the claimant alleges the general contractor retained control over the use of certain safety equipment on the roof where the accident occurred.

The court in that state had previously held that when a general contractor retains control over an independent contractor’s work, the general contractor owes a duty to use reasonable care in taking measures to prevent worker injuries. In order to meet this threshold, the level of control must be “substantial,” and involve supervision of the work that caused injury, actual or constructive knowledge of the danger that caused injury and the opportunity to prevent the injury. The idea is an entity that controls the work should be responsible for making sure it’s done safely. In this regard, the court found no basis for which property owners should be treated differently than general contractors.

However, the court found evidence against the property owner in this case to be lacking.

According to court records, the retail chain store in 2008 hired a general contractor to oversee roof construction on a new building. That general contractor hired a subcontractor, who in turn hired an independent contractor. The worker in question worked for the independent contractor.

One morning shortly before noon, the worker was walking with a co-worker on the roof outside the controlled decking zone, where they were required to don personal protection equipment, such as harnesses with an attached cable or rope at all times. However, neither was wearing this protection. The decking sheet gave way, causing them both to fall about 25 feet. It was later discovered the temporary screws holding the sheet in place had been removed. One of those workers died as a result of the fall. His personal protection equipment, unused, was found nearby.

His widow sued both the property owner and the general contractor for negligence.

But while the court found evidence lacking to hold the property owner negligent, it did find evidence supporting the assertion that the general contractor, in control of the use of personal protection equipment on site, was negligent in failing to ensure everyone who was supposed to wear it did.

Further, the court noted that after the worker’s death, the Occupational Safety & Health Administration fined the general contractor because certain danger zones on the roof weren’t properly guarded with railing; he instead had used cones. Further, OSHA noted that while none of the general contractor’s own workers were exposed to risk, as the “controlling employer” on site, it had the responsibility to ensure overall safety and health on the site. That meant, in part, making sure all workers wore the personal protection equipment, which it solely provided.

For this reason, the state high court held, the worker’s widow may continue pursuit of her third-party lawsuit against the general contractor for wrongful death.

If you have been a victim of work-related injury in Cape Coral, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.

Additional Resources:

Gaytan v. Wal-Mart, Sept. 19, 2014, Nebraska Supreme Court

More Blog Entries:

Arvizu v. Heights Roofing Inc. – Culpable Negligence in Workplace Injuries, Sept. 16, 2014, Cape Coral Work Injury Lawyer Blog