I was injured near a construction site while walking on the sidewalk. Someone working at the job site dropped a tool and it struck me, causing me injuries. Do I have a claim against the construction company or just the worker that dropped the tool?
You probably have a claim against both the construction company and the worker that dropped the tool.
The construction company is liable because of an old doctrine in the common law called respondeat superior. Nalli v Peters, 241 NY 177 (1925). (The common law is not a statute. It evolves over time through a series of judicial decisions that are accepted as a legal doctrine. The case cited is one of the earlier decisions reciting this doctrine.) Respondeat superior states that an employer will be responsible for the acts of an employee.
There are certain types of employees where the principle of respondeat superior is codified. NY General Municipal Law § 50-k states municipal employees will be defended and indemnified by their employer, the municipality.
Defenses to Respondeat Superior
Sometimes companies may claim a worker on a job site is not an employee. Construction companies frequently hire sub-contractors to do parts of a job. The contractor on this job site could claim this employee was not their employee, but instead was an independent contractor. The contractor on the job site may also claim the employee who dropped the tool was working for a subcontractor and was not their employee. The facts surrounding the employees work would determine if the worker was an employee, independent contractor, or employee of another subcontractor.
The court would look at factors like the type of work performed by the employee, who the employee reported to, scope and type of work performed by the employee, who determined starting and quitting times and who provided tools. To complicate this issue even further, the worker who dropped the tool could have been a general employee of a subcontractor but a special employee of the general contractor at the time of the accident. A worker is responsible for his actions. However if one or more employers are also responsible for the employee’s actions is more complicated. The court would determine that question.
By James Santner, Esq. If you have questions about a similar situation, feel free to contact us. Consultations are free and there is no fee unless we win.