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The Risks of “Struck-By” Accidents Involving Backhoes on Construction Sites

Construction accidents often occur in just a few seconds. But the victims can sustain potentially deadly or life-long consequences as a result of their injuries. So it is critical to hold contractors, subcontractors, and third parties legally accountable when their negligence leads to a preventable construction accident. Indeed, it is important to remember that construction sites are inherently dangerous workplaces, so every effort must be made to ensure that everyone working on the job knows and follows the rules.

Contractor Liable After Supervisor Accidentally Strikes Worker with Bobcat Arm

An ongoing New York construction accident lawsuit, Rodriguez v. DS Homes LLS, demonstrates how a momentary lapse in judgment can lead to a serious situation. In this case, the plaintiff worked for a subcontractor at a construction site in Staten Island, New York. The plaintiff’s job was removing demolition debris below grade level. As he worked, however, the arm of a Bobcat mini-excavator suddenly swung and struck the plaintiff.

The Bobcat was designed to hold a single occupant, the operator. At the time of the accident, the assigned operator was in the Bobcat while the motor was running and the cab door closed. But as the operator waited for the plaintiff to complete filling the Bobcat’s bucket, a third person approached the scene. One of the job supervisors opened the door to the Bobcat can to greet the operator. As the supervisor entered the cab, however, he “accidentally struck one of the levers causing the arm of the excavator to strike the Plaintiff,” according to court records.

The plaintiff suffered serious injuries in this construction accident. He subsequently filed a lawsuit against the general contractor and construction manager for the job site. The judge overseeing the case held the defendants were liable for the accident under New York Labor Law § 241(6), which holds that contractors and project owners have a non-delegable duty to meet the following requirement:

All areas in which construction, excavation, or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated, and conducted as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places.

To prove a § 241(6) violation, the plaintiff must allege and prove the defendant violated a specific provision of New York’s Industrial Code. Here, the judge found the plaintiff proved multiple such violations, which all stemmed from the supervisor’s presence in the Bobcat cab at the time of the accident.

First, the Industrial Code states that “[u]nauthorized persons shall not be permitted in the cab or immediately adjacent to” any power shovel or backhoe used to handle materials on a construction site. The plaintiff produced an expert witness who testified that it was well understood that an unauthorized worker entering the cab of a Bobcat mini-excavator would create a safety risk. In fact, the Bobcat operator should have locked the doors to the cab while the vehicle was in use so that someone could not just enter unannounced.

In response, the defense submitted its own expert witness, who claimed that this particular section of the Industrial Code did not apply to “backhoes used to remove material” and that the supervisor technically did not violate the rule because “he was not given permission by anyone to enter the cab.” The judge rejected both of these “interpretations” of the rule. To the contrary, the issue was not whether the supervisor had “permission” to enter the cab. The issue was that he was not an “authorized” person because he was not a member of the demolition crew assigned to work the Bobcat.

For similar reasons, the judge agreed with the plaintiff that the defendants violated a second rule in the Industrial Code which states, “Excavating machines shall be operated only by designated persons.” Once again, the defendants tried to finagle the definition, claiming the term “designated persons” was “overly broad.” But the judge reiterated that the supervisor was not a designated person because he “was not part of the excavating crew that was permitted in the cab.” Additionally, the Court said the defendants violated New York City regulations by requiring the plaintiff to “stand next to the backhoe in order to load the material into the bucket.”

The judge did, however, side with the defendants in dismissing the plaintiff’s claim that his accident violated Labor Law § 240(1), more commonly known as New York’s “Scaffolding Law.” Despite the name, this law offers broad protection for construction workers injured in accidents resulting from the fact the work site itself is elevated. For example, a contractor can be held liable for someone injured by a falling object from a scaffold, not just a worker who falls off the scaffold. Put another way, the Scaffolding Law is meant to cover “gravity-related” injuries.

In this case, the plaintiff alleged that the arm of the Bobcat itself was a “falling object” covered by the Scaffolding Law. The judge disagreed. The court noted the plaintiff himself was not working at an elevation. More to the point, the arm of the Bobcat did not strike the plaintiff due to gravity. It struck the plaintiff due to the supervisor’s accidental contact with the controls. And construction accidents arising from a “co-worker’s mechanical operation of heavy, power operated equipment.” is an “ordinary workplace hazard,” not the special kind of risk covered by the Scaffolding Law.

Contact Our Albany Construction Accident Attorneys Today

According to the U.S. Centers for Disease Control and Prevention, “struck-by” accidents involving backhoes and similar excavators are a leading cause of death among construction workers. Indeed, over the past three decades these accidents are the leading cause of non-fatal injuries in the U.S. construction industry. It is therefore critical for contractors and construction managers to maintain safe work practices around these machines and ensure all personnel are trained in their proper use and operation. If you have been injured in a struck-by or similar incident and need legal advice from a qualified Albany construction accident lawyer, contact Powers & Santola, LLP, today to schedule an initial consultation.

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