A defective dumpster Labor Law claim may arise when a laborer is injured by faulty equipment on a New York job site.
I was a laborer on a job site employed mostly to clean up the worksite after the various trades are done with their work for the day. During the day, I collect debris and dirt and put them into a small dumpster, which I am able to wheel around the job site. I then empty the smaller dumpster by wheeling it to a large container, which is near the job site and is regularly emptied. The dumpster I was using suddenly fell on its side, pinning my leg underneath it. One of the wheels had broken and caused the dumpster to crush my leg and caused something called a compartment syndrome. I needed multiple surgeries in order to repair the damage. What are my options for recovery?
Workers Compensation Claim
Since you have already mentioned that you needed multiple surgeries to repair the compartment syndrome, I am assuming that you told your employer about your accident. This is the first step in making a Worker’s Compensation claim. Lost wage benefits are also available to you as well. See our prior post describing benefits available under the Worker’s Compensation law.
Workers Compensation Defense to Third-party Case
With my experience with laborers such as yourself, I am guessing that the general contractor on the job site employed you. And under New York law, an employee cannot sue their employer and receive Worker’s Compensation benefits from them at the same time. Worker’s Compensation Law § 11.
This is important because one of the main defendants for a Labor Law claim is the general contractor on a job site. Since I am guessing at this point that your employer is the general contractor, you cannot collect Worker’s Compensation benefits, as well as sue them as a third-party under the Labor Law.
However, the Labor Law not only forces general contractors to follow safety standards, the Labor Law also applies to owners of a job site. New York Labor Law § 241(6). Therefore, since most general contractors enter into an agreement with a building site owner, you still would be able to bring a claim under the Labor Law against the owner of the property.
Please understand that I am making assumptions at this point because I do not know who your employer was at the time of the accident and who was the owner of the construction site. But this type of arrangement happens frequently in these situations.
Labor Law Claim
In several prior posts, I have discussed labor law section 241(6). This particular section puts the nondelegable duty on owners and general contractors to maintain a safe worksite. A laborer injured on a job site can bring a claim if they can cite a specific violation of New York’s Industrial code which led directly to the accident. Ross V Curtis Palmer, 81 NY2d 494 (1993).
Applicable Sections of Industrial Code
Under 12 NYCRR 23-1(a): (a) “Maintenance. Hand-propelled vehicles shall be maintained in good repair. Hand-propelled vehicles having damaged handles or any loose parts shall not be used.”
And 12 NYCRR 23-1.28 (a) “Maintenance. Hand-propelled vehicles shall be maintained in good repair. Hand-propelled vehicles having damaged handles or any loose parts shall not be used.”
(b) Wheels and handles. Wheels of hand-propelled vehicles shall be maintained free-running and well secured to the frames of the vehicles. Buggy handles shall not extend beyond the wheels on either side.” Are both applicable to your case and could be the basis for a claim under Labor Law section 241(6).
Defective Dumpster and Labor Law Section 241(6)
In your particular case, the dumpster that you were wheeling around the job site had a defective wheel. A defective dumpster Labor Law claim under section 241(6) requires showing that a specific Industrial Code violation was the competent producing cause of your accident. These sections of the industrial code apply to your accident. These violations of industrial code would be a basis for your claim under labor law section 241(6). Sancino v Metropolitan Transportation Authority, 184 AD3d 534, 124 NYS3d 534 (1st Dept 2020) (12 NYCRR 23-1.28(b) is basis for a claim under Labor law section 241. A broken wheel on dumpster caused dumpster to fall and injure ironworker.)
See also Spencer v Term Fulton Realty Corp., 183 AD3d 441, 123 NYS3d 599 (1st Dept 2020). But see Wegner v State Street Bank & Trust Co. of Connecticut Nat. Assn, 298 AD2d 211, 748 NYS2d 150 (1st Dept 2002) regarding 12 NYCRR 23-1.28(a). And see regarding the Fourth Department position: Lazar v Ontario, 221 AD2d 916, 634 NYS2d 595 (4th Dept 1995). (23-1.28(b) is general directive that cannot serve as predicate for liability under Labor Law § 241(6)).
Therefore, you have no third-party case if the owner of the building site was the same as the general contractor that likely employed you. If those entities are different, then you could prevail in a Labor Law claim and receive compensation for your pain and suffering, not just Workers Compensation benefits.
By James Santner
If you have questions about a similar situation, feel free to contact us. Consultations are free and there is no fee unless we win.