OSHA Violations Relevant in Texas Construction Worker’s Negligence Lawsuit Against Subcontractor and Temp Agency

Typically, when an employee is hurt on the job, he or she is limited to the benefits available under workers’ compensation law. In some situations, however, such as when multiple contractors and subcontractors are present on a job site, it may be possible for the injured employee to file a negligence action against a third party. This, in turn, may trigger a subrogation claim by the workers’ compensation insurance company that paid out benefits to the injured worker.

The resolution of these issues can be a complex undertaking involving, among other things, an inquiry into whether Texas or federal Occupational Safety and Health Administration (OSHA) rules were violated, contributing to the injury to the employee.

Facts of the Case

In a recent Texas appellate court case, the plaintiff was a 25-year-old man who suffered massive trauma, including a severe brain injury, damage to his spinal cord, and several fractures, while working at a construction site in El Paso. He filed a workers’ compensation claim and received about $1.8 million from the insurance carrier of the prime contractor at the job site. The worker then filed suit against the temporary staffing agency, through which he worked for an allegedly negligent subcontractor, and obtained a $6.1 million jury verdict. The prime contractor’s insurance carrier then sought reimbursement of the monies it had paid out in the workers’ compensation case.

The temp agency and the sub-contractor filed an appeal, asking the appellate court to vacate the jury’s award in the negligence action in its entirety.

Decision of the Court

The Court of Appeals for the Eighth District of Texas affirmed the judgment with respect to the temp agency, modified but otherwise affirmed the judgment against the subcontractor, and reversed the trial court’s judgment as to the workers’ compensation carrier and rendered a judgment denying reimbursement from the jury award in the negligence action (but lifting the condition requiring the carrier to pay out certain benefits before treating the jury award as an advance against future benefits).

The worker’s injuries happened when he fell off of the top rung of some scaffolding, fell three stories down an elevator shaft that was, at most, only partially covered, and struck a cement floor some 50 feet below. The subcontractor argued that the elevator shaft opening was, as a matter of law, an open and obvious condition (thus insulating the subcontractor from liability for the workers’ injuries).

The appellate court, however, noted that the subcontractor had a duty under both OSHA regulations and other industry standards to mitigate any hazards created while performing its work. The court thus agreed with the injured worker that the subcontractor’s failure to mitigate the hazard of the open elevator shaft into which he fell, in the specific ways covered by OSHA regulations, resulted in a breach of the make-safe duty. While agreeing that OSHA regulations do not create an implied cause of action, the court pointed out that the worker was not attempting to make out a case of negligence per se, but, rather, was using OSHA standards to show the “cumulative wisdom of the industry” regarding safety on a job site.

Employment Law Attorney in Dallas

Understanding and complying with federal regulations is a part of doing business, but sometimes it is hard for a company to keep up with the latest news and information in this area of the law. If you need to talk to someone about an OSHA compliance matter, the experienced Dallas employment litigation and OSHA defense attorneys at Key Harrington Barnes are here to help. You can schedule an appointment by calling us at 214-615-7925.

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