Construction related fall accidents do not only occur to workers who are at the site. A man’s head was struck by a piece of wood that fell from a construction site. The man passed the site with a friend. A company recently acquired the building to convert it into residential condominiums. The injured man sued the new owner of the building and a general contractor to recover damages for sustained injuries. Both defendants filed a motion for summary judgment dismissing the compliant.
Evidence Proving Construction Related Accident
In these Construction Related Fall Accidents, A manager of the property testified that, on the day of the incident, the building was entirely vacant. He said that he saw no loose debris or building material on the roof. The manager also testified that there was no scaffolding in place around the building. Nor was there netting to catch debris. He identified several photographs of the building showing a wooden railing on a balcony on the fifth floor. The construction project required removing the fifth floor.
Although he was able to call 911 following his accident, plaintiff was dizzy as a result of the blow. He had trouble standing up immediately thereafter. He remembered that he experienced severe pain, but many other details escaped him. To oppose defendants’ motions, plaintiff submitted a written statement from his friend The friend testified observing “a piece of wood fall from above and strike plaintiff on the head.”
He also saw two construction workers using sledge hammers to break apart the wooden railing and appurtenances at or near the perimeter of the building’s roof. According to plaintiff’s friend, large broken pieces of wood hung from the roof’s perimeter.
Plaintiff submitted an affidavit of a licensed architect. The architect compared the piece of wood that struck the plaintiff to wood members revealed in the video. He also compared it to photographs of the building. The architect concluded the piece of wood came from the building. In addition, the subject wood’s splintering suggests it was broken.
Proof of Negligence
The lower court explained to prove negligence, a plaintiff must show actual or constructive notice of the dangerous or defective condition. The plaintiff must also show a reasonable time within which to correct or warn about the dangerous condition. To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident. This is to permit defendant’s employees enough time to discover and remedy it.
The lower court granted the summary judgment in favor of the building’s owner. The Court held if the general contractor recklessly demolished the wooden structures on the building, the owner was unaware of its temporary condition.
Res Ipsa Loquitur
In the claim against the general contractor, plaintiff raised the doctrine of res ipsa loquitur. This allows a jury to consider circumstantial evidence (not direct) to find a defendant negligent in some unspecified way. Accordingly, the lower court explained “the submission of a case to a jury on the theory of res ipsa loquitur is warranted when the plaintiff can establish the following elements: (1) the accident is of a type that does not occur in the absence of negligence; (2) it must have been caused by an agency or instrumentality within the exclusive control of the defendant; and (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff.”
The lower court held that circumstances underlying this case met these criteria and thus denied the summary judgment motion filed by the general contractor. The court pointed out that a wooden board flying through the air is not a natural and unpreventable event. Additionally, the Court held the construction site was exclusively under the general contractor’s control. The Court pointed out the rule of creating a case of negligence sufficient for submitting to a jury which may decide if there is negligence. Both parties appealed.
On appeal, the First Department held that the lower court incorrectly dismissed the plaintiff’s claim against the owner of the building because issues of fact existed whether the owner knew or had reason to know that its independent contractor’s work involved special dangers to walking pedestrians that should have been anticipated. Construction Related Fall Accidents require a top personal injury lawyer to assist with your case.
Therefore, the First Department upheld the lower court’s decision in part and reversed the summary judgment granted in favor of the owner. The case was remanded to the lower court for further proceedings.
When you are involved in Construction Related Fall Accident please remember to call our personal injury law firm and seek immediate legal assistance.