I am a construction worker. We were replacing pipe in a sewer under the roadway. A vehicle lost control and struck me. What claims do I have for my injuries?
You have a Worker’s Compensation claim through your employer. A prior post explains that you have to notify your employer within 30 days after the accident. You also have to file your claim with the Compensation Board within two years. Compensation will pay for your medical expenses and lost wages during your recovery.
You also have two potential claims for your personal injuries. One claim is against the driver that struck you. You are not clear about your role in the construction. But a driver always has a duty to see what there is to be seen. From your description of the accident, you were working on the road on a sewer pipe. If there was a flagman directing traffic away from the work site, this driver did not follow that instruction. This would be a violation of the Vehicle and Traffic Law. Vehicle and Traffic Law § 1102. It also seems like the driver was speeding given the roadwork in the area. This would also be a violation of the Vehicle and Traffic Law. Vehicle and Traffic Law § 1180(a). There are probably more violations of the Vehicle and Traffic Law that the driver committed, depending upon the particular facts. But those violations would be the basis of your claim against the driver. Cordero v New York, 112 AD2d 914, 492 NYS2d 430 (2d Dept 1985).
Labor Law
You also have a potential second claim against the general contractor doing work at the site. If you are not employed by the general contractor at the site, you can make a claim for failing to provide an unsafe work place.
Labor Law § 241 provides protections for construction workers against unsafe conditions. If the worker can prove that the general contractor violated a safety industrial code provision, the worker has a claim against the general contractor. Ross v Curtis-Palmer Hydro-Electric Co., 81 NY2d 494, 601 NYS2d 49 (1993).
In your particular case there are several such possible violations. For example, was there a fence highlighting the work site for drivers? 12 NYCRR 23-1.29. A violation of this regulation can be a basis for a claim. Gonnerman v Huddleston, 78 AD3d 993, 913 NYS2d 670 (2d Dept. 2010). If the accident happened at night, was there lighting at the work site? 12 NYCRR 23-1.30. A violation could be basis of a claim under the Labor Law. Favaloro v Port Authority of New York & New Jersey, 191 AD3d 524, 143 NYS3d 4 (1st Dept 2021). But depending upon the circumstances of your accident, there could be other theories you can pursue. See also Lamuraglia v New York City Transit Authority, 299 AD2d 321, 749 NYS2d 82 (2d Dept 2002).
By James Santner, Esq.
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