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Jose Orihuela June 17, 2021

The Texas Division of Workers’ Compensation reports that, on average, 1.5 cases of non-fatal construction site injuries and illnesses occur for every 100 workers, which equates to about 43 construction site injuries each workday. That report was issued in November 2020 and utilizes statistics from 2019, when there were 11,300 non-fatal construction site accidents, along with 123 fatalities.

Unlike a worker who may slip and fall in an office and suffer a minor injury, construction site injuries are often far more serious due to the nature of the work being performed. In addition, there are often several subcontracting firms with teams of employees toiling simultaneously on a construction site. Accidents and injuries can happen in a flash, but who is liable?

If you’ve been injured on a construction site in or around Houston, Texas, or in the neighboring communities of Pasadena, Clear Lake, Friendswood, Bacliff, or Seabrook, contact my firm, Jose Orihuela, Attorney at Law. I handle personal injury cases and fight aggressively to help my clients obtain the compensation they need for their injuries and losses.

Workers’ Compensation & Personal Injury Lawsuits

Texas is the lone state in the nation that does not mandate employers to carry workers’ compensation insurance. If you’re a construction worker injured on the job, the first determination for seeking compensation is whether your contractor, subcontractor, or employer is a subscriber or non-subscriber to workers’ compensation benefits.

If your immediate employer is a subscriber, then Texas Labor Code Section 408.001(a) says workers’ compensation is “the exclusive remedy.” You cannot generally sue a subscribing employer unless you can show the injury was caused by an intentional and deliberate act against you and/or others. If your employer is a non-subscriber, then you are free to pursue a personal injury claim through a lawsuit.

If you are a close relative of a worker who died on the job, the Texas code allows for “the recovery of exemplary damages by the surviving spouse or heirs of the body of a deceased employee whose death was caused by an intentional act or omission of the employer or by the employer's gross negligence.”

Also, if you’re an independent contractor rather than an employee, workers’ compensation rules do not apply to you. You are free to seek compensation for personal injury through legal action.

Determining Liability

If you’re an independent contractor or an employee of a non-subscribing employer, your potential for personal injury claims is fairly far-ranging. You may be able to file suit against a subcontractor, the general contractor, site owner, and others, including third-party suppliers of equipment.

If you are covered by workers’ compensation, you can still seek recovery from third parties whose negligence may have contributed to your injuries. These third parties can include drivers and operators of vehicles or machinery — whether co-workers or employees of another subcontractor — who contributed to your injuries due to their recklessness or negligent actions.

Here’s an example of dual liability: say a worker on floor three drops a heavy object or piece of equipment that strikes and injures someone below. That worker can be held liable for negligently causing an injury. However, the employer may also be responsible under the legal principle of “vicarious liability.” The victim may be able to file suit against both.

Third parties can also include manufacturers and suppliers of machinery and other equipment, whose defects lead to your injury. These so-called product defect claims can include:

  • Cutting tools or saws lacking proper protection

  • Faulty heavy machinery

  • Heavy machinery without proper safety warnings

  • Faulty or defective ladders and scaffolding

  • Electrical equipment that causes electric shock or electrocution

  • Leaking machines that cause fires or explosions

Proving Negligence & Product Defect Liability

The standards for proving negligence and proving product defect liability are somewhat different. To prove negligence, you must show that:

  • The defendant (employer or third party) owed you, the plaintiff, a duty of care

  • The defendant breached that duty of care

  • The defendant’s negligence caused your harm or your loved one’s death

If, for example, your employer is a non-subscriber and you are injured because the employer failed to follow safety precautions and standards, then you have to show that the employer’s negligence in ignoring those standards is what led to your injury.

A product defect lawsuit is a bit different. You have to show that:

  • The tool or equipment that caused your injury was unreasonably dangerous when it left the supplier or manufacturer

  • You were using the tool or equipment in the prescribed manner

  • The tool or equipment had a dangerous defect that caused your injury

A defect in a product can be alleged on three fronts: It occurred because the design was faulty; it occurred during manufacture; it occurred because of a marketing defect. Any one of these three reasons can help prove that the product lacked proper safety, operating instructions, and warnings.

What Compensation Is Available?

If you’re confined to a workers’ compensation claim solely, insurers cover only medical expenses and lost wages — the latter at only a percentage of your normal weekly wages. In addition, the insurers will oftentimes try to lowball or even deny your claim outright. This means that if you’re seeking recovery through the workers’ compensation system, the help of an experienced Texas personal injury attorney is advised.

Seeking Compensation Through a Personal Injury Lawsuit

Under a personal injury lawsuit, you can also obtain compensation for non-economic losses, such as pain and suffering. Also, recovery of wages — even future earning power — is not restricted by a formula set by workers’ compensation.

In short, a personal injury lawsuit, when available, is your best avenue for obtaining maximum compensation, but you must keep in mind the standards of proof listed above. With years of personal injury experience, I can examine your case and the circumstances surrounding your injury to determine the best course of action to pursue compensation for your injuries.

Texas’ Modified Comparative Negligence Law

It is important to remember that a personal injury lawsuit will also require that the court determine the comparative fault of both the victim and the defendant. If you sue for a worksite injury and your actions contributed to the injury in any way, you will be assigned a percentage of fault or negligence.

Say, for example, that you failed to observe a certain precaution and the court finds that your negligence makes you 30% responsible for the accident that caused your injuries. Your compensation will be reduced by 30% to account for your level of fault in the accident. This means that if you are awarded $100,000 in compensation for the accident instance, you will only be eligible to collect $70,000. Additionally, if you are found to be 51% or more at fault for the accident, your claim will be denied.

Filing a Wrongful Death Lawsuit

The Texas Labor Code, as detailed earlier, does expand the employer’s liability if your loved one suffers a fatality on a construction site. If you sue for wrongful death, you can obtain compensation for:

  • Funeral and burial expenses

  • Value of services the deceased would have continued to perform

  • Loss of companionship

  • Loss of emotional and physical support

  • Loss of affection

  • Loss of financial support

Work with An Experienced Texas Personal Injury Attorney

If you have been injured on a construction site, it is imperative that you contact a personal injury attorney immediately. Construction sites are fast-moving, and a piece of equipment that was defective yesterday may be replaced or repaired the following day. If the coworker or subcontracting crew that was involved in the accident has moved on to another site, this can further complicate any investigation.

The quicker that I can review the details of your case, the better your chances will be of uncovering the true cause and liability for your injury. 

If you have been injured on a construction site and live in the Greater Houston Area, including Pasadena, South Houston, Clear Lake, or other nearby communities, contact me, Personal Injury Attorney Jose Orihuela, as soon as possible. I have dedicated my practice to helping hard-working people just like you, as well as others in the construction industry. I will fight vigorously to protect your rights and fight for the best possible outcome for you. Call today to schedule a free case evaluation.