Massachusetts Injury Lawyer Blog

Ruling Confirms Rights of Injured Workers to Bring Third Party Claims Against General Contractor after Receiving Workers' Compensation Insurance

The Supreme Judicial Court (SJC) today affirmed the right of an employee of an uninsured subcontractor to bring third party claims against the general contractor, even if the general contractor has made workers' compensation payments pursuant to G.L. c. 152, § 18. The case was an important victory for workers injured in construction accidents.

The case arose from an explosion on a residential construction site. The explosion killed a worker and seriously injured his son, who was also working at the site. Both men were employed by Great Green Barrier Co., which did not have workers' compensation insurance. As a result, pursuant to G.L. c. 152, § 18, the general contractor, Henry C. Becker Custom Building Ltd., was liable for the workers' compensation obligations. This obligation arises under the policy in Massachusetts that a general contractor is responsible to hire only subcontractors which have workers' compensation insurance available for their employees.

The defendant argued that the statutory scheme prevented the plaintiffs from making third party claims once they had accepted lump sum workers' compensation settlements pursuant to G.L. c. 152, § 23, which ordinarily bars workers from maintaining negligence claims against their employers if they have accepted workers' compensation benefits. While this argument had persuaded the trial court, which granted summary judgment for the defendant, the ruling had been overturned by the Appeals Court. Wentworth v. Henry C. Becker Custom Bldg. Ltd, 76 Mass.App.Ct. 507 (2010).

The SJC granted further appellate review and affirmed the Appeals Court ruling, which reversed the summary judgment for the defendant.

Click here for more information on this case.

Continue reading "Massachusetts Supreme Judicial Court Denies General Contractor Immunity" »

Every year, Massachusetts families and organizations come together to honor the men and women who are killed and injured while on the job. This year, on April 28, the Massachusetts Coalition for Occupational Safety and Health (MassCOSH), the Massachusetts AFL-CIO, and the Greater Boston Labor Council are co-sponsoring Workers' Memorial Day and are publishing the 2011 report: Dying for Work in Massachusetts: Loss of Life and Limb in Massachusetts Workplaces.

"It is critical that Massachusetts employers improve the safety of their workplaces to protect their workers. The high rate of death and injury on the jobsite is still taking a horrible toll on Massachusetts workers and their families. It is also unfortunate that enforcement continues to suffer budget cuts," said Boston personal injury lawyer David White.

As stated in this sobering report, its purpose is to "highlight the fact that work continues to kill and maim workers in epidemic and alarming numbers. The saddest aspect to this loss in lives and limbs is that work-related injuries and illness are preventable."

The report describes in clear detail the tragedy facing Massachusetts workers and their families. In 2010 alone, 47 Massachusetts workers lost their lives while on the job. (Breakstone, White and Gluck has the privilege and honor of representing the family of one of these deceased workers in their claim for his pain and suffering and wrongful death while on the job.)

The top three causes of fatalities among Massachusetts workers in 2010 were transportation (12 deaths: drivers or workers on roads involved in motor vehicle accidents and plane/helicopter crashes), falls (9 deaths: half being construction site accidents), and commercial fishing (4 deaths).

On Workers' Memorial Day, we honor the fallen by demanding stronger workplace health and safety protections under the Occupational Health & Safety Administration, because it is every person's right to be safe in their own work environment.

Join us on Thursday April 28, 2011 from 12:15 to 1:15 p.m. outside the Massachusetts State House as we mourn for the dead and fight for the living.

Breakstone, White & Gluck is a proud sponsorof MassCOSH, an organization with a great reputation for protecting workers and improving workplace safety. 

Continue reading "Workers' Memorial Day in Massachusetts Remembers Workplace Victims" »

Breakstone, White & Gluck congratulates MassCOSH for its tireless advocacy of a new law which bans flammable floor finishing product in Massachusetts. The law takes effect today.

The law bans the commercial use and sale of lacquer sealer, which can easily ignite and is linked to three deaths of floor finishers in house fires.

"This groundbreaking law will save lives and end floor finishing fires that have caused so much pain and destruction," said Marcy Goldstein-Gelb, executive director of MassCOSH (the Massachusetts Coalition for Occupational Safety and Health).

The law was filed at the urging of the industry-labor-community Floor Finishing Safety Task Force. The task force investigated two home fires in Somerville and Hull that killed three floor sanders and burned several others.

The task force was led by MassCOSH and Viet Aid. The floor refinishing industry in Massachusetts is largely concentrated in the Vietnamese community.

The Massachusetts Department of Public Health is disseminating new posters alerting floor finishing contractors across the state about the ban.

Breakstone, White & Gluck is a construction accident law firm, and is a proud sponsor of MassCOSH. Click here to learn more about MassCOSH.

Massachusetts workplace accidents and the lives they claim were the focus today at the Workers' Memorial Day Commemoration and Rally at the Massachusetts State House. The event honored the 62 workers killed on the job in Massachusetts last year. Organizers called for workplace safety improvements to prevent more injuries and deaths.

The names of the victims of workplace accidents were read aloud at the beginning of the rally, and a moment of silence honored the men and women, as well as their families. 

In a report on Massachusetts workplace accidents released today, the Massachusetts Coalition for the Occupational Safety and Health (MassCOSH) said for every worker killed on the job, 10 more die from occupational disease. Massachusetts workplace accidents resulting in death in 2009 included:

• 6 servicemen and women who died as a result of the war in Iraq


• 9 construction accident deaths


• 7 fishing accident deaths


• 11 deaths among Massachusetts firefighters


• 11 transportation accident deaths


• 6 workplace violence deaths

MassCOSH, which co-sponsored today's rally with the Massachusetts AFL-CIO and the Greater Boston Labor Council, estimated 1,800 Massachusetts workers were diagnosed with cancers caused by workplace exposures last year. Another 50,000 Massachusetts workers reported serious personal injuries.

There are currently several efforts to prevent Massachusetts workplace accidents. Last Workers' Memorial Day, Governor Deval Patrick issued an executive order establishing health and safety committees in all state agencies. But MassCOSH said a glaring problem that still must be changed is that Massachusetts' public sector employees are not covered under the federal Occupational Safety and Health Act (OSHA) like private sector workers.

Among other recommendations, MassCOSH calls on the state to be more proactive and to protect temporary workers by passing the Employment Agency Bill (Senate Bill 2364). This bill will require employment agencies to provide written notice about key details of job assignments, the work site employer, the type of work to be done, the right to workers' compensation and other important information. We believe this bill is especially important in light of this economic time.

MassCOSH's complete report is titled, "Dying for Work in Massachusetts: Loss of Life and Limb in Masachusetts Workplaces." It is available from MassCOSH.

Boston attorney David White (below) attended the rally on behalf of the firm.

Breakstone, White & Gluck, a Massachusetts workplace accident law firm, supports MassCOSH and its work to improve Massachusetts workplace safety, inspections and enforcement.

Continue reading "Massachusetts Workers Rally for Safety and to Commemorate Fallen Workers" »

James Delayo, the former chief crane inspector for New York City, has plead guilty to accepting more than $10,000 in bribes to fake inspections and crane operator licensing test results.  Delayo has admitted to accepting bribes between 2002 and 2008 to file paperwork indicating that a Long Island-based crane company had passed inspections that never happened and to say an employee passed a licensing exam never taken.  For these and other favors, Delayo received from $200 to $3000 in individual payoffs.  An official and employee with the involved Long Island crane company, Nu-Way Crane Service, have plead not guilty to bribery and record tampering.  Delayo is currently out on bail until his sentencing on May 4th. His plea deal calls for two to six years in prison.

Delayo was arrested back in 2008 after the second of two serious construction accidents caused by massive cranes collapsing. The accidents caused the wrongful deaths of nine people. Authorities said at the time that Delayo's case was one in a series of cases against builders and inspectors accused of accepting tainted money.  Consistent with that claim, Delayo is not the only person in trouble after the 2008 crane collapses.  A crane rigging contractor has been charged with manslaughter for one collapse and a crane owner and former mechanic have been charged with manslaughter for the other collapse.  Since the 2008 accidents, New York City building officials have made changes to crane training requirements and exam procedures for some operators.  Additionally, some inspections are now performed by a national group.

To see additional coverage of this story, see this Boston Globe article.

Continue reading "Ex-NYC Chief Crane Inspector Put Lives in Danger by Accepting Bribes" »

The Massachusetts Appeals Court recently reviewed a case in which the defendant homeowner, Johnson, hired a contractor to remove several trees from her land. The contractor subsequently hired a subcontractor/crane operator, West, to help with the project. The crane was damaged during the work, and the crane operator sued the homeowner. The jury found in his favor. His case was before the Appeals Court to determine whether the homeowner was liable for his damages.

Johnson had several conversations with the general contractor about the exact location of her septic system, which was important for him to know in order to safely remove the trees. The contractor apparently conveyed information about the septic system to his subcontractor, the crane operator. The day the crane arrived, Johnson noticed that it was set up in the location of the septic system. Though she was a surprised, she did not interfere with his work.

Soon after, the crane's outrigger pierced the septic system and the crane tipped over, causing damage to the crane and to the house. The crane operator sued Johnson, cliaming that she had a duty to warn him about the septic system.

The Appeals Court determined there was no duty. Even though Johnson may have been suspicious of the crane's placement, she did not have a further duty to give warnings. She retained no control over the work in general, and crane operator's work in particular. Her only duty to the general contractor was to give accurate information about the septic system, which she did. It was the responsibility of the original contractor to oversee the actions of the crane operator.

Accordingly, the crane operator's case was dismissed. The case is West v. Johnson, Mass. App. Ct. No. 08-P-130 (2009). 

As a homeowner, how can I protect myself from these types of lawsuits?

An important consideration in determining liability is control: the less control you have over a situation, the less likely it is that you will be liable for damages. One of the many benefits of hiring a general contractor to help with a residential construction project is the shift of liability from you to the contractor. If a contractor agrees to oversee all aspects of subcontractor performance, the homeowner will likely have no direct contractual agreements with the subcontractors and, therefore, retain no control over their work.

Before hiring a contractor, be proactive. Ensure that they are registered with the state, and are carrying adequate insurance. Review the details of your contract, don't be afraid to ask questions, and ask for proof of his/her registration and insurance certificates. Browse the additional links below for more tips on how to choose a contractor. 

Additional links:

• Homeowners FAQ's - The Massachusetts Executive Office of Public Safety and Security
• Choosing a Professional Contractor - The Eastern Massachusetts Chapter of the National Association of the Remodeling Industry

 

Continue reading "Massachusetts Homeowner Found to be Not Liable for Subcontractor's Damages" »

In its annual report on workplace safety, The Massachusetts Coalition for Occupational Safety and Health (MassCOSH) has detailed the high rate of death, injury, and disease which Massachusetts workers continue to suffer. Enforcement and prevention by OSHA, the Occupational Safety and Health Administration, is still seen as lacking, and an audit of OSHA  nationwide demonstrated a failure to enforce job safety laws against employers which repeatedly risk injury and death to workers. OSHA is underfunded and understaffed and incapable of completing comprehensive worksite inspections.

According to the MassCOSH report, sixty-six workers lost their lives on the job in 2008. These deaths were caused by transportation accident, falls, commercial fishing, workplace violence, crushing injuries, electrocution, and toxic substances. Falls continued to be a common cause of workplace deaths, and most of these were construction accidents.

In addition to the high rate of death in the workplace, almost 90,000 workers in the private jobs sector (which excludes self-employed and public sector workers) suffered some form of work injury. While Massachusetts did not have the highest rate of workplace injury, the rate of serious injuries and illnesses, resulting in lost time from work, was higher than the national average.

Occupational disease also remains a very serious concern, and the scope of this problem is not completely known. Certain diseases, such as mesothelioa, occupational cancers, work-related asthma, and lead poisoning are tracked, but the diagnoses of these diseases is not always related to the job, even if it was caused by a workplace exposure.

The complete report released by MassCOSH, entitled Dying for Work in Massachusetts, Loss of Life and Limb in Massachusetts Workplaces, is available at the MassCOSH website. MassCOSH sponsored Worker Memorial Day at the Massachusetts State House on April 28th. Breakstone, White & Gluck, a Massachusetts construction accident law firm, is a proud sponsor of the work of MassCOSH, which is making Massachusetts workplaces safer for all, and which is working to increase the rate and quality of workplace safety inspection and enforcement.

Massachusetts drivers now have another law to obey: Drivers need to slow down and move over when approaching stationary police, emergency response, and construction vehicles that have their lights flashing. The penalty: $100, and your insurance rates will probably also go up.

This well intentioned bill was enacted to prevent injuries caused by car accidents. First responders to accident scenes and work crews have suffered serious injuries as the result of negligent drivers who fail to slow and move over, and the legislation is designed to make their work safer.

But can you legislate this kind of safety? The bill itself is quite vague. A driver is required to change lanes "if practicable." A driver is required to reduce his or her speed to a "reasonable and safe speed for road conditions." How will that be judged?  And will emergency vehicles leave the scene to chase down violators of this new law?

Saving lives and preventing injuries are, of course, important goals. But real safety comes from a broader awareness of our duty to ensure the safety of emergency and construction personnel, and that awareness begins with proper driving training. It also begins with simple common sense and courtesy.

 

 

 

Continue reading "Massachusetts Car and Truck Drivers: Slow Down and Move Over to Prevent Accidents--It's the Law!" »

A crane collapse in August 2008, which occurred in Quincy, Massachusetts, caused one wrongful death and three other people injured. After an extensive investigation, the Occupational Safety and Health Administration (OSHA), issued citations to three of the companies involved in the crane

dismantling process. With today's pressure to underbid competition, many people are wondering if those cost savings mean a compromise of safety on the job site.

At the Fore River Shipyard in Quincy, MA, a giant crane needed dismantling. As is customary, specialty contactors were brought in for the task. Norsar LLC was hired to oversee the process and they subcontracted Sarens to operate the jacking system necessary for the dismantling process. OSHA issued citations for serious violations to both of these companies.

The problem, OSHA representatives say, is that the companies deviated from their original plan and then did not adequately work out the new plan, placing many employees in danger. Originally, the companies planned to dismantle the crane's 160-foot leg units in two 80-foot parts. Instead, they opted to work with the full 160-foot units, exposing employees to crushing-by and struck-by hazards. Additionally, they failed to minimize employee presence in the danger zone.

Continue reading "Contractors Cited in Fatal Quincy, Massachusetts Shipyard Crane Accident " »

This year has been a tragic one for the crane industry. The most recent accident to gain national attention was the collapse of an enormous mobile crane at an oil refinery in Houston, Texas. Four workers were killed when the crane, with a 400 foot boom, toppled, taking another crane down as it fell. This news follows two dramatic crane accidents in New York City, both of which involved fatalities, and which exposed corruption in the inspection unit responsible for crane safety. Other recent crane accidents have taken lives in Las Vegas, Miami, and Oklahoma City.

Amazingly, only fifteen states (Massachusetts is among them) require crane operators to be certified or licensed. But even licensing of crane operators is insufficient when general contractors fail to recognize and warn of inadequate site conditions, or when other workers ignore basic safety rules.

With eighty people dying each year in crane accidents, it is long past time for the federal government to act. Sadly, the NY Times reports today, rules to strengthen OSHA regulations to reduce the likelihood of a crane accident sit mired in red tape. The building industry and labor both want better rules, but the administration won't act.

The new safety rules should be enacted promptly to protect workers and the public from avoidable tragedies caused by crane accidents.

The attorneys at Breakstone, White & Gluck, P.C. have handled a number of crane accident and other construction site accident cases, and have an excellent understanding of crane operations as well the rules and regulations governing construction sites. If you or someone you know has been injured in a construction accident, we would be pleased to provide a free consultation regarding your case. You can read more hiring a lawyer for construction accidents on our construction and crane accident page.

Resources:
Massachusetts Crane Accident Case Report
Long Overdue Crane Safety, NY Times, August 2, 2008
Crane Accident at Houston Refinery, NY Times, July 19, 2008

Improperly designed nail guns and negligently operated nail guns are leading to tens of thousands of accidents, injuries, and wrongful death claims among construction workers and consumers. Each day over 100 injuries occure, and roughly two-thirds of those injuries were construction site accidents. In addition to injuries caused to workers, bystanders, people working nearby, and people passing worksites have often been injured.

The number of injuries as well as a number of wrongful death claims have led to calls to make nail guns safer. The American National Standards Institute (ANSI) recommended in May, 2003 that "manufacturers install sequential-trip triggers on certain types of nail guns before distribution."  This is a voluntary standard.

What Should You Do If You Suffer a Nail Gun Injury?

First, preserve the evidence; do not adjust or take apart the nail gun or its attachments. Secure the evidence where it cannot be tampered with or lost so the product liability case can be properly investigated.

Contact an experienced product liability and construction site accident lawyer immediately.  It is critical for you to preserve your rights by being represented by the best attorneys at all times.

The lawyers at Breakstone, White & Gluck have decades of experience with product liability and construction site accidents, and are prepared to get the best results if you or a loved one has suffered a nail gun accident or wrongful death.

Read More About Massachusetts Nail Gun Accident Cases. 

Other Resources
Nail gun injuries under fire as injuries soar, Sacramento Bee, 4/13/08
Decades of research and calls for more nail gun safety, Sacramento Bee
Nail Gun Injuries are Increasing, Revolution Health Orthopedic Blog, 6/5/07