1. Read the statute. When you get the case, make sure it fits within the parameters of Labor Law §240(1):
a. Was the injured worker engaged in a §240 activity? Construction, demolition, etc.
b. Was the injured worker working on a building or structure?
c. Was there the failure or absence of an enumerated safety device?
A thorough investigation must be conducted immediately upon your being advised of the accident. The following are items which must be obtained:
1. Official Reports a. OSHA Investigations including prior citations b. Dept. of Buildings records(including permits and permit applications)
c. Police reports d. Department of Buildings violations/citations
2. Injured Worker’s Records
a. Ambulance Call report b. Hospital records c. Physicians/Rehabilitation records d. Autopsy/Death Certificate e. Workers’ Compensation file f. Prior Workers’ Compensation claims and prior medical g. Union records h. Employment records I. Income Tax records for five years prior to accident
3. Witness Statements
Witness statements should be obtained at the earliest opportunity. If necessary, get Affidavits from witnesses immediately, before their story changes, they stop talking or they disappear.
4. Photographs of Scene
5. Copies of All Contracts
6. Identity of All Contractors on Job
a. Who supervised job b. Who was in charge of safety c. Was duty to control and supervise
work which gave rise to accident
specifically delegated to a sub-contractor
7. Insurance Policies Including All Endorsements
8. Job Documents
a. Safety memos and inspection records b. Records of safety meetings c. Work permits d. Progress sheets e. Daily logs f. Progress photographs g. Dept. of Buildings inspections h. Determine who owned and controlled
all equipment involved in accident I. Records regarding safety equipment at the job site
The plaintiff must tell a Labor Law §240 story. You must anticipate recalcitrant worker/sole proximate cause defenses and handle them within the confines of the case law. I.e., no specific instructions, no other available safety devices, etc.
A. The Defendants’s deposition .you must anticipate recalcitrant worker/sole proximate cause defenses and handle them within the confines of the case law. You must also take as many defendant depositions as necessary of those important people at the job site because you do not want to get an Affidavit as part of a Summary Judgment motion of a key witness you did not depose.
The following is a brief deposition checklist for the plaintiff’s attorney:
1. Identify the contracts in place – do they have any paragraphs concerning site safety?
2. The presence/absence of safety meeting minutes, site Safety Plan, progress notes, progress photos, and any other document which could potentially memorialize any specific instructions
3. List of all safety equipment present at the job site and their usage/locations. Were they nearby? In use? Appropriate for plaintiff’s job?
4. Identify each important person at the job site (especially those with supervisory authority) and their job function
5. Identify all persons present on the day of the accident – who supervising, what plaintiff doing, what point in job was the plaintiff
6. The defective safety device – where is it? Who owned it? What happened to it? Anyone inspect it following the accident? Findings? Photos?
7. Safety instructions. Who gave? When given? Who present? Reduced to writing? Were the instructions in English? Spanish? IMPORTANT: Ask the defendant witness if the plaintiff acknowledged that he heard and understood the instructions.
8. Witnesses to accident? Witnesses to conditions prior to accident? Witnesses who saw plaintiff working in similar manner prior to accident? Anyone tell him to stop? Give other directions or warnings?
9. Post-accident investigation – Accident reports, Worker’s Compensation reports, OSHA, defendant, anyone else’s report – areas of agreement/disagreement. Meetings, conversations
10. Cause of accident – any determination made as to cause of accident? By whom? What determined?
B. Non-party witnesses – depositions must be taken to evaluate/establish the recalcitrant worker/sole proximate cause defenses and distinguish/support them given the state of the current case law.
The New York Construction Accident Lawyers at Gair, Gair, Conason, Rubinowitz, Bloom, Hershenhorn, Steigman & Mackauf have years of experience representing construction workers who have suffered injury and /or death in construction accidents in New York.