From road construction to falling debris from a building construction site, construction site accidents can happen in many ways. If you or a loved one have been injured as a result of a condition on a construction site, or by the negligence of a construction worker or contractor, you may be entitled to file a negligence claim to recover compensation for your injuries. There are a number of factors to consider in filing a negligence claim.

The Basics of a Negligence Claim 

Construction site contractors and employees have a legal responsibility to act in accordance with certain standards of care in making the construction site safe. Typically, these standards are measured by what the reasonable contractor or employee would do in the same or similar circumstances.  The failure to comply with that standard is legal negligence.

Elements of a Negligence Claim

Negligence actions require that the Plaintiff prove the four basic elements of a negligence claim:

  1. That the Defendant owed a legal duty to the Plaintiff;
  2. That Defendant breached that duty;
  3. That the Defendant’s breach of the legal duty was the proximate cause of the Plaintiff’s injuries; and
  4. That the Plaintiff sustained damages as a result of Defendant’s breach.

Moning v Alfono, 400 Mich 425, 437 (1977).

In most cases, negligence claims alleging construction site liability will be filed as standard negligence claims, although in certain situations, a negligence claim alleging premises liability may also be appropriate.

Possible Defenses to Construction Site Liability Claims

The defenses available to a construction contractor or employee in a negligence action are the same as those available to other types of Defendants in negligence cases, and primarily focus on the elements that the Plaintiff must prove.

In that regard, the two most common issues that arise in such cases are assertions that the Defendant did not owe the Plaintiff a legal duty, and that, even if Defendant did owe a legal duty, the proximate cause of Plaintiff’s injuries was not the Defendant’s breach.

Defining the Legal Duty Owed

Defining a construction contractor’s legal duty can be difficult. Generally, an individual has a legal duty “to conduct himself in a particular manner at the risk that if he does not do so he becomes subject to liability to another to whom the duty is owed for any injury sustained by such other, of which that actor’s conduct is a legal cause.” Restatement, 2d of Torts, Section 4. A legal duty arises when an individual knows, has reason to know, or should know, that his or her actions or failure to act are likely to cause harm to another. Restatement, 2d of Torts, Section 12.

As a general rule, a person has a legal duty to act in any particular situation in a manner that is the same or similar to the manner in which a reasonable person would act. When a Court examines a Defendant’s conduct, the Court will attempt to determine whether the Defendant’s actions were the same or similar to the actions which would have been taken by a reasonable person in the same or similar circumstances.

There are numerous state statutes which regulate safety and conduct on construction sites, and these statutes can help to define the standard of care which each site is required to provide. In highway or roadway construction, certain traffic laws may also be applicable.

Causation as a Defense to Negligence

In some situations, the Defendant may also assert that the Defendant’s breach of duty was not the proximate cause of the Plaintiff’s injuries. Generally, this defense focuses on the specific cause of the Plaintiff’s injuries, and requires the Plaintiff to establish through medical proof that the injuries he or she sustained were actually the result of the Defendant’s breach of a legal duty, rather than a pre-existing medical condition. It should be noted, however, that Michigan does allow a Plaintiff to recover for the aggravation of a pre-existing condition. Wilkinson v Lee, 463 Mich 388, 394-395 (2000).

Comparative Negligence

Michigan uses a comparative negligence system, meaning that a Plaintiff’s ability recover for his or her injuries may be reduced or barred altogether if the Plaintiff’s actions contributed to causing the accident. Specifically, the finder of fact, which is usually a jury, will be asked to apportion fault to each of the parties in the case. If the Plaintiff is found to have contributed to the fault which caused the accident, the amount the Plaintiff is entitled to recover will be reduced by the percentage of fault attributed to the Plaintiff. If the Plaintiff’s fault was more than 50% of the cause, then the Plaintiff’s economic damages are reduced according to the percentage, and the Plaintiff is completely barred from recovering any noneconomic damages.MCL 600.2959.

Other Defenses

There may be other defenses which are specific to the facts of the particular case. In road construction cases in which the Department of Transportation or some other governmental agency is named as a Defendant, the government may assert an entitlement to governmental immunity.

The Defendant may also employ procedural defenses, including a violation of the statute of limitations, or a lack of standing if someone other than the injured individual is named as the Plaintiff.