When a construction accident occurs on a job site, all attention is understandably on the injured worker. It’s only after the fact that those involved start to think about the condition of the site, the equipment or other third parties that may have caused the injury. It’s at this point that building owners, contractors and suppliers start raising the question of whether they have a duty to preserve certain evidence that may be needed by the worker to make his or her third-party claim. construction

To be clear: Employees generally cannot sue their employers for work-related injuries. The exclusivity provision of Florida’s workers’ compensation law stipulates that workers’ compensation is the sole remedy for injured and ailing workers harmed on-the-job. However, some courts have ruled this exclusivity provision doesn’t apply to claims of spoliation of evidence, which are separate from workers’ compensation claims. Neither do exclusivity provisions apply to third parties. This is important because third party claims, while typically more challenging than workers’ compensation cases, can be far more lucrative. That’s because workers’ compensation does not allow a plaintiff to collect for damages such as pain and suffering, mental/ emotional anguish or loss of consortium. Third-party claims do.

Spoliation of evidence occurs when one party intentionally destroys, loses, withholds, alters, hides or fabricates evidence that is relevant to the legal proceeding at hand.

Some examples of spoliation of evidence on a job site:

  • Erasing work time logs or general ledgers.
  • Destroying work orders.
  • Destructive testing of equipment/ machines involved in the accident.
  • Scraping accident equipment.
  • Losing work orders that showed costs, production, quotes and pricing.
  • Confiscating and then losing equipment alleged to have failed.

In the recent case of Schaefer v. Universal Scaffolding & Equipment, plaintiff was injured when a metal beam fell on his head as he was helping to erect scaffolding sought compensation from a third party. According to documents from the U.S. Court of Appeals for the Seventh Circuit, worker was employed by a contractor hired to erect scaffolding on site at an energy plant. However, the components of the scaffolding, supplied by a third party, were proving a serious problem. Several of the pieces were too small and they didn’t lock properly into place. A supervisor ordered the defective pieces set aside and the work continued.

Then one day in November 2008, while plaintiff was helping on the scaffolding job when a three-foot bar popped out of one of its cups and fell onto decedent’s head, seriously injuring him. He successfully filed for a workers’ compensation claim. He later filed a claim against the product manufacturer/ supplier, but then it was revealed the actual beam that struck him was missing. It had been lost by power plant employees. Plaintiff filed a separate injury lawsuit for spoliation of evidence.

District court granted summary judgment to defense on the grounds that without that lost piece of equipment, plaintiff couldn’t prove he would have won his case and therefore, he couldn’t show he’d suffered any loss by defendant’s failure to preserve it.

The 7th Circuit reversed on the spoliation issue. Although the court disagreed with plaintiff that he had sufficient evidence to prove the bar was defective (the mere fact an accident occurred doesn’t establish causation), the court did find plaintiff had sufficient evidence of negligent spoliation. That is, a reasonable jury could find there was:

  • A duty to preserve that evidence;
  • A breach of that duty by loss of evidence;
  • The loss proximately causing plaintiff’s inability to prove his claim;
  • Actual damages resulting.

If you have been injured in a construction accident, our experienced Miami injury lawyers can help.

If you have been a victim of a traffic accident, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.

Additional Resources:

Schaefer v. Universal Scaffolding & Equipment, Oct. 7, 2016, U.S. Court of Appeals for the Seventh Circuit

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