Construction Site Accidents

Published on: March 26, 2015

Were Exemplary Damages Appropriate in Texas Forklift Accident Case?

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.

Continue reading →

Published on: December 23, 2014

Liability Exception Under Chapter 95 in Texas

By Carabin Shaw

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 →

Published on: December 11, 2014

When Can A Nonparty to A Texas Contract Be Compelled to Arbitrate a Personal Injury Case?

By Carabin Shaw

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 →

Published on: March 24, 2014

Texas Court of Appeals Upholds Jury Award of Over $300,000 in Injured Construction Worker Case

By Carabin Shaw

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.

Continue reading →

Published on: January 20, 2014

OSHA Cites Municipal Company For Willful Violation and $63,000 After Two Workers Are Killed in a Trenching Collapse

By Carabin Shaw

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.

Continue reading →

Published on: November 17, 2013

Texas Workers’ Compensation Law Update

By Carabin Shaw

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.

Continue reading →

Published on: August 17, 2013

Texas A&M Construction Accident Highlights Dangers faced by Construction Workers in Texas

By Carabin Shaw

Construction projects can be dangerous and can be the result of faulty machinery, inexperience, lack of safety measures, and weather, among other factors. Notably, the construction industry in Texas not only employs nearly 600,000 Texans, but it also contributes $9.2 billion in wages. Unfortunately, construction workers face some of the most deadly working conditions in the country. According to the Bureau of Labor Statistics, 715 construction-related deaths were recorded in the U.S. in 2010, and 138 of these deaths occurred in Texas.

In June 2013, four workers were hurt, three critically, after a barn frame collapsed at a Texas A&M University equestrian complex that was under construction. According to a Texas A&M spokesman, the collapse took place on university property about a mile from the main campus. The National Weather Service reported that conditions at the time of the collapse were cloudy with temperatures in the mid-80s and winds gusting just above 10 mph, indicating that weather was likely not a factor.

This accident is just one of many accidents involving construction workers taking place across Texas. According to the Houston Chronicle, Texas leads the nation in the rate of construction worker fatalities. Although federal and state regulations provide some protections to construction workers and their families, there is still more that can be done. Even though workers injured on the job are supposed to recover lost income via workers’ compensation, in at least 60% of work-related fatalities in Texas, no benefits from workers’ compensation are paid. In fact, according to data from the Texas Department of Insurance, this number is even higher for construction workers. Additionally, Texas is currently the only state in the United States that does not require workers’ compensation for private employers.

Continue reading →

Published on: June 19, 2013

Navigating Work Place Injuries

By Carabin Shaw

Navigating Work Place Injuries

With more and more drilling activity occurring across the Eagle Ford Shale and the economy doing better here in San Antonio, we are seeing more and more individuals injured on construction sites, work sites and oil well drilling sites.

Workplace injuries and deaths make up a large part of litigation handled by many personal injury attorneys. According to the United States Secretary of Labor, every year nearly 4 million people suffer a workplace injury, from which some never recover.

Continue reading →

Published on: March 1, 2012

Construction Worker in Critical Condition After Equipment Lands on Top of Him Near Austin

By Carabin Shaw

The United States Department of Labor’s Occupational Safety and Health Administration (OSHA) are investigating a construction accident near Austin that sent a worker to the hospital on Tuesday. A construction worker in his 30’s suffered a cardiac arrest after a roller machine he was operating to pack and flatten dirt at the new Circuit of the Americas Formula One race track fell on top of him. The worker was taken by helicopter to a local hospital where he remains in critical condition.

A spokesperson for the track, Jeff Hahn, stated the construction employee was experienced in using the machinery that purportedly caused his injury. He also said the worker had undergone many hours of equipment training. According to Hahn, this is the first accident at the 970 acre site since construction began approximately two months ago. Each day, anywhere between 350 and 400 workers can be found working around the clock at the construction site. The race track is scheduled for completion later this year.

Although all work stopped near where the accident occurred, it continued in other areas of the building site. Hahn stated he did not believe the accident would have an effect on the track’s overall construction schedule. Agents from OSHA arrived on the scene to investigate the accident early Wednesday morning.

The Occupational Safety and Health Act of 1970 created OSHA to reduce employee injuries and fatalities. Under the Act, workers are provided with certain safety-related rights such as training, information about safety hazards, and copies of safety test results. Employers must follow OSHA health and safety standards and provide a workplace that is reasonably free of safety hazards. When a serious workplace accident occurs, OSHA is tasked with investigating whether the work site complied with established safety standards.

Employees in the construction industry may be faced with hazardous conditions on a daily basis. Unfortunately, construction accidents hurt or kill thousands of workers every year. Although workplace injuries are generally subject to state workers’ compensation laws, a third party may be liable for failing to implement adequate safety measures. The manufacturer of construction equipment may be held responsible for building a dangerous or defective product. Contractors have a duty to warn workers about potential construction hazards and take proper safety precautions to ensure a reasonable level of safety. Architects and property owners may also be liable for dangerous conditions that result in an accidental injury. If you have questions, a qualified construction accident attorney can explain an injured worker’s options for financial recovery.

Continue reading →