If a worker on a construction site is struck or falls and is injured, the worker will be covered. For such an injury, a personal injury attorney will decide if there are claims in addition to the workers compensation claim, such as a negligence claim.
Negligence Claim Requirements
To prove a negligence claim, the injured person must show that (1) the defendant companies owed him a duty, (2) the defendants breached that duty, and (3) the breach was the cause in fact of some damage to the injured party. See Brennen v. City of Eugene, 285 Or. 22 (1979), McEvoy v.Helickson, 277 23 Or. 781 (1977); Harding v. Bell, 265 Or. 202 (1973).
The negligence claim will allow the injured worker to recover substantial damages as decided by the jury, including lost income, lost earning capacity, and for the general effect on his life.
Duty of Employer
A negligence claim has a duty requirement. An employer has a duty to provide a safe work place. Under the Employer Liability Law, a direct or indirect employer has the duty to take every practicable step “for the protection and safety of life and limb” and to ensure compliance with all applicable orders, rules, and regulations.
Another Contractor can be an Indirect Employer
A claim for injury against the direct employer will ordinarily be barred by the workers compensation statute. However, the Employer Liability Law applies not only to direct employers but also to “indirect employers.” Brown v. Boise-Cascade Corp., 150 Or. App. 391, 396 (1997), Miller v. Georgia-Pacific Corp., 294 Or. 750, 754, (1983).
In the Brown case, the court explained that one of three tests must be satisfied to trigger indirect employer liability:
- the “common enterprise” test;
- the “retained control” test; or
- the “actual control” test.
“Common enterprise” liability requires more than the defendants’ employees working together with the plaintiff to further a common enterprise. In addition, the defendants must exercise control or charge over the activity or instrumentality that causes the injury. There must actually be “a causal link between 16 the defendant’s involvement in joint work and the plaintiff’s 17 injury.” Brown, 150 Or. App. at 397. The “retained control” test requires that the defendant retain “a right to control . . . the manner or method in which the risk-producing activity [was] performed.” Brown, 150 Or. App. at 398, (citing Miller, 294 Or. at 754). The “actual control” test requires that the defendant actually control the manner or method in which the risk-producing activity is performed. Miller, 294 Or. at 754.
If the Employer Liability Law applies, then a typical civil action for construction site injury to a subcontractor’s employee will include a claim for negligence against the general contractor or against another subcontractor.
This post written by E. J. Simmons, construction accident attorney in Portland.