Can I Sue My Employer After I Get Hurt on a New York Construction Site?

Posted in Construction Accidents on April 29, 2022

Construction sites are dangerous, and construction accidents are among the most common workplace accidents. In most cases, you would file a workers’ compensation claim against your employer for a construction site injury and leave it at that. New York law contains an exception, however, that might allow you to file an ordinary personal injury lawsuit for which your employer might share liability.

How Workers’ Compensation Works

The New York workers’ compensation program works a lot like workers’ compensation programs throughout the United States. If you suffer an injury in a work-related accident, you can file a workers’ compensation claim with the New York Workers’ Compensation Board. The system is mostly no-fault, meaning that you don’t have to prove that your employer was at fault to win, and you can win even if you were at fault.

The main disadvantage of the workers’ compensation program is that you are generally not eligible for non-economic damages such as pain and suffering, mental anguish, and lost quality of life. In ordinary personal injury claims that you can assert by filing a lawsuit, non-economic damages often account for well over half the value of a claim. Ordinarily, however, you cannot sue if you have a workers’ compensation claim.

Third-Party Lawsuits

The law is filled with loopholes, and New York workplace accident law contains an important loophole that allows you to file a personal injury lawsuit for a workplace accident. You can claim non-economic damages, but you must find a third party who was at fault for your accident through negligence, recklessness, or intentional misconduct.

In the case of a construction accident, for example, you might sue the owner of the construction site (assuming the owner is not your employer). The owner of premises must repair or warn of dangerous conditions in their property. If your injury resulted from an unreasonably dangerous condition on a construction site owned by a third party, you could sue the third party.

New York’s “Grave Injury” Loophole

Under the New York workers’ compensation system’s “grave injury” exception, if you suffer a work-related “grave injury” that was caused by third-party misconduct, you can file a personal injury lawsuit and seek workers’ compensation benefits at the same time. Additionally, the third party can add your employer as a second defendant in the lawsuit.

The advantage to you is that with two defendants, you will have the resources of both defendants available to pay your claim. If your claim is large, this could make a huge difference in the amount of your actual recovery.

Following is a list of injuries that qualify as “grave” under New York law:

Loss of your nose or ear;
Loss of more than one toe;
Loss of your index finger or more than one finger;
Permanent and total loss of use of an extremity (your arm, leg, hand, or foot), including through amputation;
Major paralysis (paraplegia or quadriplegia);
Severe, permanent facial disfigurement;
Total blindness or deafness;
Traumatic brain injury resulting in total permanent disability; or
Death (for a wrongful death claim).

Note that the use of certain modifiers such as “severe” leaves plenty of room for lawyers to argue.

Comparative Fault

Since workers’ compensation is a no-fault system, the employee’s own misconduct (negligence, for example) normally does not matter. In extreme cases, such as intentional injury or intoxication, however, employee misconduct might matter. In a personal injury lawsuit, however, New York’s comparative fault rules apply when more than one party is at fault. This system allows an employer to reduce their liability.

New York operates a “pure comparative fault” system whereby a judge apportions fault among the parties. An injured party will lose whatever percentage of their damages equals their percent of fault. If, for example, the employee is 20% at fault for the accident, they will lose 20% of their damages. This might reduce damages from $100,000 to $80,000. The less in damages the worker is entitled to, the less in damages the defendants will have to pay.

Do You Need a Construction Accident Lawyer?

If your injury is minor and no third party is to blame, you might not need a lawyer. If your injury is grave and a third party likely bears liability, you probably do need a lawyer. When in doubt, schedule a consultation to determine whether or not you need a lawyer.

Contact Our Construction Accident Law Firm in New York, NY

If you need legal assistance, contact the construction accident attorneys in NYC at Law Offices of Jay S. Knispel Personal Injury Lawyers at your nearest location to schedule a free consultation.

We have two convenient locations in New York:

Law Offices of Jay S. Knispel Personal Injury Lawyers – New York City Office
450 7th Ave #409
New York, NY 10123
(212) 564-2800

Law Offices of Jay S. Knispel Personal Injury Lawyers – Brooklyn Office
26 Court St Suite 2511
Brooklyn, NY 11242
(718) 802-1600