Legal Strategies for Construction Injuries

00:03 Speaker 1 Welcome to the Effective Lawyer, a podcast for ambitious attorneys who want to improve their practice. My name is Jack Zinda and I'll be your host. Today we're going to talk about construction injury cases. We're going to dive into tips for handling your first construction injury case. Talk about some of the ways to investigate these cases and some of the challenges you may face in your practice representing people that were injured on the construction site. I'm Jack Zinda, and today to help us dive into this topic are two of my favorite trawlers in the firm. Don't tell anyone else, Burgess Williams and Chrissy Hagan. And last but not least is our brand manager, Kelsey Falsely. Well, thank you everybody for joining us here today. 00:59 Speaker 2 Good to be here. 00:59 Speaker 3 Thank you. 01:01 Speaker 1 Well, I'm really excited about this topic. I really get passionate about helping workers, especially in the construction injury context. I think in this country, a lot of times we treat blue collar workers very poorly and they do some of those dangerous, important work out there. And some of the injuries that they can sustain remind you of, you know, 1920s New York City when they're building the Empire State Building, opposed to a, you know, modern economic powerhouse like the United States. And so I really get fired up trying to help our clients and try to make the workplace, you know, safer for them and safer for everyone else. 01:40 Speaker 2 I agree with you. You know, in all cases that we work on, I think every incident we see can be prevented. But especially in this arena, construction injury cases typically occur because a very simple safety rule, if followed, will prevent this from happening. But we see them broken time and again and people get catastrophically injured as a result. 02:07 Speaker 4 And I've seen a lot of these cases come through the firm and they really do range on a wide spectrum. So with that, there is so much to cover. Let's sort of take a deep dive into these types of cases. 02:22 Speaker 3 Yeah, I think first and foremost, you know, you have to think about all the potential players involved. So there's first, who's the potential client? Was he or she someone who was a worker on a construction site? Or was it someone who was passing by a construction site, a pedestrian or just a bystander? And then also who all was at the site, who may be a witness, who were the subcontractors, general contractors, site owners? There's just so many different people that you want to identify right away. Which is why I think it's so important to get started working on these cases as soon as possible and hope that it was an incident that didn't happen too Long ago. When the potential client comes to you. 03:07 Speaker 2 Yeah, that's key, is establishing relationships. First, the injured potential client, who are they working for? Who does that company answer to? Who's the general contractor? You always have to be asking yourself when you're looking at these cases, is somebody on the job somehow barred? Who can you pursue? Who screwed up? And do they have any sort of immunity, whether through workers comp or. Or any other sort of insurance agreement? So it's critical. The first thing you do when you look at these cases is establish who all the parties were on site and what their relationships were. 03:53 Speaker 1 Yeah, and I kind of look at like a snapshot, like a picture of the construction site at the time of the injury, I think can be really helpful. And then just trying to identify each type of worker that was there. I think of a construction site like a mall, and there's usually several dozen companies that are involved with working on that site. And so first, you know, making your list of all of those different people, and I think also figuring out what was the type of issue that caused the harm. So what are the. Some of the types of cases that you all see? And let's talk about specifically, like the types of injuries you see on a construction site, I think, Kristi, you mentioned one. Bystanders. That can be an area. 04:35 Speaker 1 If someone is a bystander and is passing through or close to a construction site. You know, Burgess, what are some of the types of injuries you've seen and kind of that mechanism of harm that led to the person getting hurt or killed? 04:50 Speaker 2 Yeah, I see a lot of cases primarily dealing with falls, falling from a distance, you know, falling debris, materials that are on site that aren't properly secured. We see cases from time to time and just motor vehicles on site, running into people, forklifts. 05:12 Speaker 1 We've seen a lot of those, A. 05:13 Speaker 2 Lot of forklift injuries. We've seen people get knocked over and porta potties and suffer injuries. You know, there's. Construction sites are by their nature dangerous places, which means that you have to have a heightened sense of care when you're moving around them. And so things can go wrong and they can go wrong quickly. That's why it's so critical for everybody on site to follow the safety rules to prevent harm from everybody who's on site. 05:47 Speaker 1 I remember we had a case one time involving a boulder that a bulldozer had hit and just like in the cartoons, literally rolled down a hill and crushed our clients. I mean, it's crazy how dangerous these work sites are. And you Know, the enforcement mechanism to prevent the harm to the workers is very weak. I mean, what are some of the fines that you guys have seen OSHA give for death and catastrophic injury cases? 06:18 Speaker 2 It's amazing. Sometimes that they're even a five figure fine and they get litigated forever and oftentimes are settled for very small amounts. So osha, you know, when you see a big OSHA fine assessed against a company for a worksite injury, that means something really bad happens because typically you don't see very significant fines. 06:45 Speaker 4 So, Burgess, you were talking about the fines associated with these injuries. What are the most helpful regulations or other guides that you need to be aware of? 06:57 Speaker 2 Well, like any case that you're handling involving injuries, you need to figure out what the rules are that direct conduct anywhere. The first place you want to go to is to the OSHA regulations. The OSHA regulations are massive. They cover so many different areas. So you want to try and figure out the area where the case, your particular case is involved as it relates to osha. You also want to look at ansi. You want to look at ANSI standards. You need to consult with an expert liability expert who knows these codes and can point you to them and tell you what applies. You know, one very helpful thing is OSHA is called, and they're supposed to typically be called by people on site when a significant injury occurs. 07:55 Speaker 2 If OSHA comes out and investigates and determines that somebody did something wrong, they're going to issue the citation, they're going to cite to the particular code violations. So that's a really good head start. So you look at those codes and then you really start to develop your rules that you want to weave in and out of your case and kind of be the bedrock for the case that you're building. 08:18 Speaker 1 You know, I also think you can look at instruction manuals and trade journals. You know, for example, if you have a scaffolding injury case you could look at is what is the proper procedure to put it up a scaffold. And you don't necessarily have to get a really expensive expert at first. You can talk to people that work on construction sites to help point you in the right direction. And the way I always think about it, you want it to be very simple. If someone had done this harm would have been prevented. Who was in the best position to prevent the harm and who had the power to do so? We've had a lot of cases where someone falls from a high height and they didn't have the proper fall protection. 09:02 Speaker 1 And so what you want to figure out is who was responsible for providing that fall protection. And a lot of times you can figure that out by looking at the contractual agreements. And that also brings up a really tricky part about these cases. Discovery pre lawsuit can be really tough to figure out, you know, even who all the parties are. So I think that's another thing to keep in mind. 09:25 Speaker 2 One area that we've had success in finding out a good rule source is in cases where there's been a certain incident where the employees involved take onto some sort of training institute to get OSHA certified. We subpoenaed the training manual from that institute and we got it. And the individuals had certificates that they had completed that course. And so we got them to agree that, yeah, you went to this course and you learned how to do all these things and this is how you're supposed to do it. And so, boom, you've got your rule source right there that is authoritative. And they're going to have to agree that's the way you're supposed to do things. 10:09 Speaker 3 I was just going to add something that Jack brought up. How important it is to start discovery or start the investigation as soon as possible, especially if you're dealing with something like improper safety mechanisms or scaffolding, something that you can go take a look at right away and take photos of or send out exfoliation letters to see if anyone who was at the site that day had taken any photos. Also look in EMS reports to find out whether the worker was wearing a hard hat or what safety protections were at the job site versus what should have been there based on a quick search online of what the proper setup is for something like that. 10:55 Speaker 1 Yeah, and you got to move fast because a lot of times workers in this profession are transitory. You know, they're going from one job to the next, and those are your witnesses. And if you wait a year, 18 months, good luck. One, figuring out what happened and two, tracking down the people that could actually testify to it. 11:14 Speaker 2 Yeah, you need to get these cases in the litigation right away so that you can start securing evidence. You know, one of the things that we've seen in more recent times, and I think this is used as a security mechanism, a lot of job sites will have fixed cameras that will be taking footage of the job site 24, 7. And it's kind of a time lapse photograph, but you can get really good evidence from these. You have to be careful because if you don't get subpoena power over that information quickly, it could disappear. And sometimes it's helpful for the defense if it does disappear. 12:02 Speaker 5 Zynda Law Group is a plaintiff's personal injury law firm made up of over 30 lawyers that handle Catholic catastrophic personal injury and wrongful death cases throughout the United States. We regularly counsel and joint venture with firms across the country. Over the last several years, we have paid millions of dollars in joint venture counsel fees to the law firms we work with. If you are a law firm or attorney and have a catastrophic personal injury or wrongful death case you would like to joint venture or work with Zynda Law Group on, please reach out to us at 800-863-5312 or email us at infoind and we can set up a time to discuss your case. 12:40 Speaker 4 So how often do construction injuries occur? This is a nationwide firm law group and have you noticed any particular trends? 12:50 Speaker 2 In any state they happen quite a bit. And you know, depending on the state that your case is pending in, sometimes you do have a viable case. Depending on the relationship amongst the parties, sometimes you're barred from pursuing a case. Typically if your client is working and their company has workers compensation and it's just the company that caused the incident that harmed your client, they have no recourse against the company. They're barred from pursuing the company. So that's why it's always important to find out if there's any third parties who are on site, anybody who may have contributed to the incident. So you could potentially find a party to pursue. 13:34 Speaker 3 And Burgess, I think you've worked on cases where there's machinery malfunctions inside a factory, something to that effect. In construction type cases, is it common to also be looking to see if there's a potential products case and how do you make sure you're on the lookout for something like that? 13:53 Speaker 2 Yeah, I think there always is the potential. Now you need to have really severe if not catastrophic injuries to justify. But if it's something like a nail gun that is misfiring and shoots somebody's eye out, you want to be able to secure the nail gun so that you can evaluate from a product standpoint. Again, that goes to the whole point of acting quickly, securing evidence so that you can look at this stuff. 14:24 Speaker 1 You know, one of the saddest things to me about these cases is that a lot of our clients and a lot of people that suffer these injuries are undocumented workers and they're really taken advantage of because I think there may be no way for us to truly know the extent of this. You know, really a plague across the country because a lot of our clients are terrified to even contact an attorney initially. And some unscrupulous employers will actually use that pressure to try to prevent them from pursuing their legal rights and remedies. And so whether it's a family member who's concerned about it or the person themselves, that really makes it tough to figure out how many of these are. 15:03 Speaker 1 I have a feeling that as the economy picks up steam and you're seeing more and more construction, that these types of injuries have picked up significantly. I know we've seen a significant uptick in the types of calls we're getting the last several years as construction's picked up in Texas especially. Yeah. 15:21 Speaker 2 And I don't think OSHA would be a good source to figure out how many there are because these incidents in my experience are drastically underreported that employers or people, whoever are in charge of the site, are not contacting OSHA even though the code says they're supposed to. So I think it happens a lot more than what the numbers would indicate. 15:45 Speaker 4 So what are the most common injuries that you've seen related to these cases? 15:50 Speaker 3 I think they're almost always pretty severe, catastrophic. Especially when it comes to falling objects. You know, you're almost always going to have a severe brain injury or some type of spinal injury. Same thing with falling falls off scaffolding ladders not being secured properly. It's going to be a major injury. 16:12 Speaker 1 And a lot of times, you know, I was really shocked to learn the helmets that people wear on construction sites are not really designed to protect you from very severe impacts. They're more designed to protect you from small debris. And we've had several cases where someone suffered a catastrophic brain injury and they were wearing a helmet at the time and it almost had no impact on. I mean, they may have survived, but the amount of injury they had even though they were wearing a helmet, was still very severe. 16:40 Speaker 2 Yeah, if it's not death, it's usually a very severe injury. We've seen people lose limbs, lose fingers, toes, thumbs. It can be pretty significant and change a life because if things are falling or moving at a fast pace, it's not going to be good. 17:02 Speaker 4 So, Jack, can you outline sort of a discovery plan for these types of cases? 17:07 Speaker 1 Yeah, I mean, I think you're almost always going to be in litigation on these. If you are not the type of law firm that likes to litigate, I would stay far away from construction cases because you're not going to get them done pre lit 99 times out of 100. I mean, these cases, you've got to figure out who the parties are. So I always start with creating a list of everyone that I think that could be responsible for what happened, and then trying to make a list of requests for production that would produce documents showing the names of everyone on the construction site and then getting the contractual information showing the relationships between the parties. And from there, I'll start making a list of depositions I want to take. And you're going to need to take a lot of depositions in these cases. 17:51 Speaker 1 And I'll typically line up five, six, seven, eight in a day. That may be short depots, but I'm just trying to figure out, what do you know, what did you see, where were you? And really line those up. You know, Virtus, you and I just worked on a really complicated construction case. What are some of the tips you have for putting together a really effective discovery plan? 18:11 Speaker 2 Yeah, so I think you want to get an org chart. You want to find out who, what, where, why and how. You want to get a good visual understanding of the site. If you don't have photographs, you want to get witnesses and depositions to do sketches for you so that you can really kind of bring it to life and tell the story effectively in front of a jury. There's a lot of documents that you're going to want to pursue. You want to get the OSHA logs when they've reported injuries. One of the tough things about OSHA is when they have an outstanding case and typically they take a very long time to resolve, they will not respond to a FOIA request. And unless you're in federal court, you don't have subpoena power over them. 19:02 Speaker 2 So you can't count on OSHA giving you a lot of information at the beginning, but you want to get the contracts amongst other parties and then you want to really figure out who the key witnesses are going to be, who are going to really allow you to make your case. I think one of the most important things is knowing the law, the case law and any statutory law that you have in the state and crafting especially your higher level depositions around those, you can create a fact issue to avoid summary judgment. We do a lot of these construction injury cases in Texas and you know, with the tort reform that we've had over the last 40 years, there's just a minefield of issues that you have to be aware of and you have to be able to navigate through it. 19:52 Speaker 2 And if you don't know the case law and you're not creating fact issues on certain areas, you're going to be toast when it comes to summer judgment time. 19:59 Speaker 4 So, going to that initial client meeting, Krissy, what can you do to make that the most successful it can be and to get the information that you need? 20:11 Speaker 3 Basically just get as much information as possible. Ask the client whether he took any photos, who was with him, who he was working for at the time. A lot of times clients assume. I guess I shouldn't say assume, but I would not assume that they know exactly who was paying their pay stub. I've been taught this by multiple attorneys in the firm. You know, just because a client says they're working for X, we want to confirm that, make sure it's not a case that might be barred by workers comp, and make sure that client wasn't actually being paid by someone else who could be a responsible, you know, wasn't being paid by someone who's actually not the responsible party, and there's actually someone else you could be going after. 20:56 Speaker 1 Yeah, you gotta be creative. I mean, I don't know if you found that, Burgess, because we've had cases where the person's in a coma and literally their loved ones, like, I don't even know where they go to work every day, you know, and like, okay, all right. We have almost nowhere to start, and I knew none of his coworkers. And so getting into the bank accounts can be helpful to see where the pay is coming from. Just checking 911 calls can be helpful to see those transcripts to see where the person came from. I know we have a case recently where we had to reach out to EMS to say, okay, where did you pick this person up at to find out which construction site it was? 21:38 Speaker 1 And I promise you that the defense is not going to do you any favors in these cases because everyone has an interest in making sure that they're not held accountable and your client is not able to make a recovery. Yeah. 21:51 Speaker 2 And one really good practice tip is to trust but verify what your client is telling you. Especially when it comes to workers comp, you always need to ask the client, okay, well, did you get medical treatment? Great. You got medical treatment. Did anybody pay for it? You've been getting bills. If somebody's paying for the care, that probably means that there's some sort of worker benefit that's involved. And you need to determine if that is like an ERISA plan or if it's workers comp. Because if it's workers comp, you're going to be barred. If it's something else. If it's a different type of plan, just kind of an employee benefit plan, there still may be a path forward against that individual's company. And there's databases online that you can log into to find out if the employer was a workers comp subscriber at the time. 22:40 Speaker 2 Do that right away because you don't want to spend a bunch of money investigating the case, then paying the filing fees, getting it in the suit just for them to file a motion dismissed or motion for summary judgment saying, well, we're comp barred, you can't pursue. 22:54 Speaker 4 So do you have, let's say a lawyer is coming on to one of these cases for the first time. What are some of the biggest pieces of advice that you would have for those attorneys who were handling their first construction injury case? 23:10 Speaker 1 I mean, I think you want to start off by, do you understand what a construction site is like? Go out to the scene if you can, obviously get the permission from opposing counsel. Go out there with your expert and have a beginner's mind. Read everything you can. And don't act like you're too smart. You know, I always use every opportunity I meet with an expert to try to learn something and I try to come at it like, and ask them real basic questions. You know, why does this regulation exist? What's it designed to prevent? Who's at fault and why? And ask real basic questions and then just read, read. You gotta really understand the regulations. And looking at other cases like this. 23:56 Speaker 2 I would recommend calling you. 23:59 Speaker 1 Is that what you're saying? Calling Burgess Williams. 24:02 Speaker 2 Yeah, call me. No, seriously, these cases are tough, they're expensive, and it's hard to get a lot of information right out of the gate. So you need to make sure that the damages justify taking the case off and you need to find out if there's going to be a source of recovery. We've come across what we thought were great cases. Significant damages looked like good liability, and the target defendant had. Had no source of recovery. There was no insurance. So you need to line your elements up first just from a threshold standpoint before you dive in. Because you could be spending a lot of time and money for. Not if the damages and source of recovery are not there and you're not. 24:49 Speaker 1 Helping the client if you spend a bunch of money, a bunch of time, and they end up with zero because your objective is to try to help them make a financial recovery. Well, great, guys, I really appreciate everyone joining us today. If you have any questions about a case you're working on, whether it's construction or otherwise. You know, reach out to me, reach out to Chrissy, reach out to Burgess. Happy to talk to you either over the phone or via email or Snapchat or whatever way you want to talk about your case. You can reach us at zdfirm.com email us, call us, and until next time, thanks. Thank you for taking the time to listen to this episode of the Effective Lawyer. If you enjoyed this podcast, please take a moment to rate it 5 stars and leave us a review. 25:43 Speaker 1 To get notified about new episodes that are upcoming or have been released, go to zdfirm.com/podcast to sign up for our mailing list.