Austin Scaffold Collapse — A Case Study

Yesterday, one worker was killed and another injured when the scaffold they were using collapsed.  The workers were maintenane workers for the Retreat at North Bluff apartment complex.  They were apparently using a make-shift wooden scaffold for their work.  The Occupational Safety and Health Administration is now investigating the incident.

If you’re involved in such an incident, what types of issues might you face in bringing a claim?

The first issue in on-the-job injuries is whether your employer had true worker’s compensation insurance.  The Texas worker’s compensation system provides protection for employers who carry worker’s compensation insurance.  If  your employer carries worker’s compensation insurance then the insurance will pay for medical expenses and some lost wages for you for any on-the-job accident regardless of who caused the accident.  But the protection to your employer is that you can’t sue your employer for any other damages, such as pain and suffering, mental anguish, etc.

The one exception to this protection is if your injuries were caused by your employer’s gross negligence.  Generally, that means is that your employer knew it was doing something dangerous and putting you at risk but did it anyway.   If you are killed or seriously injured by your employer’s gross negligence, then you may still be able to bring a claim against your employer even if the employer has worker’s compensation insurance.  But you may waive this right by accepting worker’s compensation benefits so it’s important to talk to an attorney right away to make sure you don’t waive your rights.

Because the state wants to encourage employers to carry worker’s compensation insurance, there is also a penalty for employers that don’t carry worker’s comp. Those employers are deprived of any comparative responsibility defense.  In a normal case, a defendant is generally only liable for the percentage of damage it causes you.  For example, if a jury finds you suffered $10,000 in damages, but that the defendant was 60% responsible and you were 40% responsible, then you only get to recover 60% of the damage (in this example, $6,000).  But if a “non-subscriber” case where the employer doesn’t carry worker’s compensation insurance, your employer is responsible for all the damages even if it only contribute 1% responsibility to your injuries.

So the first thing we need to know in these cases is whether your employer has worker’s compensation insurance.  A good first start is the Texas Department of Insurance website, which will verify whether your employer carries worker’s compensation insurance or not. 

The second thing we ask is whether any other entity (other than your employer) contributed to your injuries.  Perhaps you were working on a jobsite and the property owner had a dangerous condition there.  Perhaps you were on a jobsite and your injuries were caused by an employee of a subcontractor or someone else working on the same job.  There are a lot of possibilities that we look for here.  (I”ll also add that the law in this area is very complicated.  It would take a book to explain the ins and outs of potential third-party liability claims.  I’m not trying to explain all that here.)

Once we determine who we might be able to sue, we then focus in on what they did wrong.  Just because you’re injured on the job doesn’t mean that your employer is liable for your injuries.  We have to be able to prove that your employer’s negligence contributed to your injuries.

In a case like the example, that should not be difficult.  Scaffolding is very dangerous and is thus highly regulated.  

OSHA has several requirements for scaffolding safety. Initially, it is critical that the scaffolding be constructed properly. OSHA has very detailed requirements for the construction of scaffolds. These requirements include:

• each scaffold and scaffold components must be capable of support four times the maximum intended load on the scaffold
• any suspension ropes must be capable of supporting at least six times the maximum intended load
• the working levels must be properly planked and decked
• scaffold components manufactured by different manufacturers must not be intermixed unless the components “fit together without force” and the structural integrity is maintained
• supported scaffolds (as opposed to scaffolds suspended from the roof) must be plumb and braced to prevent swaying
• for suspended scaffolds, there must be a normal operating brake and an emergency brake or locking pawl that automatically engages when there is an instantaneous change in momentum or an accelerated overspeed

In addition, OSHA has specific guidelines for fall safety systems, which includes a requirement that each employee on a walking/working surface with an unprotected side or edge which is more than six feet above a lower level must be protected by a guardrail system, safety net system or personal fall arrest system. The OSHA rules also specific requirements governing the guardail, safety net and personal fall arrest systems.

When looking at this claim, we would investigate to determine whether your employer complied with these requirements.  If your employer failed to comply with the requirements, then we have a good start to argue that your employer’s negligence contributed to your injuries.

In addition to looking at regulations, we also look to other actions that your employer might have taken or not taken that contributed to the incident.  For example, in many cases, people are injured by co-workers.  In those cases, we’ll look at the hiring process or the training process to try and determine whether your employer’s hiring or training process contributed to your injuries.

Once we’ve done the investigation regarding your injuries, then we’ll turn to your injuries and start investigating those.