Construction Accident FAQ

Labor Law §240(1), commonly called the Scaffold Law, requires property owners and general contractors to provide proper protection to workers performing elevation-related work — scaffolding, ladders, hoists, ropes, braces, and similar equipment. If that protection fails and a worker is injured, the owner and contractor are strictly liable. You don't have to prove they were careless. You only have to prove the protection was absent or inadequate.

§241(6) covers a broader range of construction site hazards. It requires owners and contractors to comply with specific safety rules set out by the New York Industrial Code. Unlike §240, it's not strictly liable — you need to show a violation of a specific code section and that the violation caused your injury. But it captures accidents that §240 doesn't, like machinery injuries, floor collapses, and equipment failures at grade level.

§200 is the codified version of the common law duty to provide a safe workplace. It applies when an owner or general contractor either controlled the method of work that caused the injury, or had actual or constructive notice of a dangerous condition. It requires proof of negligence — unlike §240. Most cases plead all three sections together.

Strict liability means the defendant is responsible for your injury regardless of how careful they were. Under §240, if the protection failed and you fell, the owner and GC are liable — full stop. They can't escape by proving they had a safety program, trained workers, or didn't know about the hazard. This is why §240 cases are among the strongest personal injury claims in New York.

Both. §240 covers workers who fall from elevation AND workers struck by falling objects. The falling object has to be connected to the elevation-related work — a load being hoisted, a tool dropped from above, a beam that slipped. A random object knocked off a table at ground level is different. But most falling-object situations on a construction site qualify.

Under §240 strict liability, comparative fault is generally not a defense. The only exception the courts recognize is the 'recalcitrant worker' — someone who was given adequate safety equipment, refused to use it with no instruction to do otherwise, and was injured as a result. That's a narrow exception. In most cases, your own negligence doesn't reduce your recovery under §240.

Property owners, general contractors, and construction managers can all be held liable. The statute carves out a limited exception for owners of one- and two-family homes who don't direct or control the work. Beyond that, the net is wide. Subcontractors generally can't be sued under §240 by a co-worker — though they can face liability under other theories.

No. New York courts have consistently held that undocumented workers have the same rights under the Labor Law as any other worker. Your status has no bearing on liability or your right to recover. It may affect certain wage-based damage calculations in some situations, but the core claim stands. Any attorney who tells you otherwise is wrong.

Yes. The Labor Law protections apply to all workers engaged in construction, excavation, demolition, repair, or painting — union or not. Your employment status as union, non-union, W-2, or 1099 doesn't determine coverage. What matters is the nature of the work you were doing when you were hurt.

No. Under New York law, a property owner can't contractually shift or waive their §240 liability. Indemnification agreements between owners and contractors can affect who ultimately pays, but they don't eliminate your right to sue. And any release you sign without legal counsel — especially while you're injured and vulnerable — is worth challenging.

Three years from the date of the accident for most Labor Law claims. That sounds like a lot of time, but evidence disappears fast — surveillance footage gets overwritten, witnesses move on, scaffolding gets torn down. Don't wait. The statute sets a hard cutoff; missing it ends your case permanently.

Much shorter. If the property is owned by a city, state, or municipal agency, you must file a Notice of Claim within 90 days of the accident. After that, you have one year and 90 days to commence the lawsuit. Missing the 90-day Notice of Claim deadline is almost always fatal to a case against a government entity.

Get medical attention first — document the injury from day one. Report the accident to your supervisor before leaving the site if you're able. Photograph the scene, the equipment, and your injuries. Get names and contact information of any witnesses. Don't give a recorded statement to any insurance company without an attorney. Call a lawyer the same day or the next morning.

Photos of the scene and equipment (before anything is moved or repaired), the incident report, your own written account of exactly what happened, witness names and contact info, your clothing and gear from that day, medical records from every provider, and payroll records or pay stubs. If there's a camera on the site, put the GC or owner on notice immediately — they have an obligation to preserve that footage.

You should report it for workers' comp purposes, but it's not a legal prerequisite to filing a §240 lawsuit. That said, failure to report creates practical problems — the GC and owner get to claim they had no notice, records don't exist, and the insurance investigation starts without your input. Report it, get it in writing, and keep a copy.

File a corrected statement yourself as soon as possible. Send a written account of what actually happened to your employer, the general contractor, and their insurance carriers — certified mail, return receipt. Document the discrepancy. Inaccurate incident reports are common; they're not fatal to your case, but they need to be countered with contemporaneous evidence.

Yes, and in most cases you should file while still treating rather than wait until you've fully healed. Active medical treatment is evidence. Gaps in care can be used against you. Filing doesn't require your injuries to be finalized — damages for future medical treatment and ongoing disability are recoverable.

A Notice of Claim is a formal document you must serve on a government entity before suing it. It identifies you, describes the accident, states the nature of your injuries, and specifies where and when it happened. It must be served within 90 days of the accident. If you were hurt on a site owned or managed by the City, MTA, Port Authority, NYCHA, or any public agency — you need one.

In the Supreme Court of the county where the accident occurred. Manhattan cases go to New York County Supreme Court, Brooklyn to Kings County, Queens to Queens County, and so on. If the damages exceed certain thresholds, the case may stay in Supreme Court through trial. Smaller claims can go to Civil Court, but most serious construction accident cases belong in Supreme Court.

After the complaint is filed, defendants are served and they answer. Then comes discovery — document exchanges, depositions, site inspections, expert disclosures. That phase typically takes one to two years. After discovery closes, either the case settles or it goes to trial. Most cases settle during or after discovery, often before a trial date is set. Your attorney should keep you informed at every stage.

Past and future medical expenses, lost wages to date, lost future earning capacity, pain and suffering (past and future), and loss of enjoyment of life. In cases involving catastrophic injury, future care costs — nursing, therapy, home modification — can be a major component. Economic damages are calculated based on actual numbers; non-economic damages are argued based on the impact on your life.

There's no formula. Juries in New York weigh the nature and permanence of the injury, how it affects daily life, the age of the injured worker, and the credibility of their testimony. Attorneys and courts look at comparable verdicts in similar cases. Catastrophic injuries — paralysis, traumatic brain injury, loss of limb — carry the highest pain and suffering awards. Even moderate permanent injuries can result in substantial awards.

There's no meaningful average because the range is enormous. Minor injuries with full recovery settle in the tens of thousands. Serious but non-catastrophic injuries — fractures, herniated discs, rotator cuff tears — often settle in the hundreds of thousands. Catastrophic injuries routinely result in seven-figure settlements or verdicts. What your case is worth depends on the severity and permanence of your injury, your earnings history, and the strength of the liability evidence.

Economic damages have a dollar figure you can calculate — medical bills, lost wages, future care costs. Non-economic damages cover what can't be invoiced: pain, suffering, loss of enjoyment, emotional distress, impact on your marriage or family. New York doesn't cap non-economic damages in construction accident cases (unlike some other states), which is significant.

Yes, though documenting it takes more work. Courts accept testimony, tax returns (if filed), records from other workers doing similar work, and expert economist analysis to establish what you earned and what you've lost. Being paid off the books doesn't forfeit your right to lost wage recovery — it just requires more creative proof.

Partial disability means you can work, but not at your prior capacity — your lost earning capacity damages reflect the wage differential. Full disability means you can't work at all in any capacity — damages cover your entire lost earnings through retirement age, often discounted to present value. An economist typically testifies on these calculations. The distinction between partial and total disability also affects workers' comp benefits.

Workers' comp doesn't reduce what you're entitled to recover — but your workers' comp carrier has a lien on your recovery. They're entitled to be reimbursed from the proceeds of your lawsuit for the benefits they paid. The lien is negotiable. Good attorneys negotiate it down, which increases your net recovery.

When your workers' comp carrier pays your medical bills and wage replacement, they become a creditor against your lawsuit proceeds. If your case settles for $500,000 and the lien is $80,000, the carrier takes $80,000 off the top before fees and before you. But the carrier has an incentive to negotiate — if they don't cooperate, courts can reduce their lien. Experienced attorneys push back hard on lien amounts.

Generally, no. Compensatory damages for physical injury — medical expenses, lost wages, pain and suffering — are excluded from federal gross income under the tax code. Punitive damages (rare in these cases) are taxable. Interest on a delayed judgment can be taxable. You should confirm the specifics with a tax professional for your situation, but most construction accident settlements are received tax-free.

Yes. A wrongful death action can be brought by the estate and surviving family. Wrongful death damages in New York include the economic support the worker would have provided, funeral expenses, and the value of services provided to the family. A separate 'conscious pain and suffering' claim can be brought for what the worker experienced between the accident and death. These cases are among the most serious construction litigation in the state.

Workers' comp is a no-fault insurance system — you file with your employer's carrier and receive wage replacement (typically two-thirds of your average weekly wage) and medical coverage. It's limited and doesn't cover pain and suffering. A §240 lawsuit is a separate civil claim against the property owner and general contractor. It can recover full lost wages, pain and suffering, and long-term damages. The two systems run parallel.

Yes — and in most serious construction accidents, you should. They're separate claims against different parties. Workers' comp is against your employer (via their insurer). The §240 lawsuit is against the owner and GC. The only complication is the lien the comp carrier gets on your lawsuit recovery, which is manageable.

Workers' comp caps your wage replacement at roughly two-thirds of your salary and pays for medical — nothing more. No pain and suffering, no future lost earnings beyond the benefit schedule, no recovery for what the injury did to your life. A §240 lawsuit faces no such cap. Pain and suffering alone can exceed the total comp recovery by many multiples in a serious case.

No. Accepting comp benefits does not waive your right to file a §240 lawsuit. New York law explicitly preserves this right. The only thing accepting comp triggers is the carrier's lien on your eventual recovery. Accept the benefits — you need the income and medical coverage while your case is pending.

A third-party claim is a personal injury lawsuit against someone other than your direct employer. In construction, that usually means the property owner, the general contractor, or another contractor on site. Because workers' comp bars you from suing your own employer, the third-party route is how most injured workers access full compensation beyond comp benefits.

Not in most cases. Workers' comp is the exclusive remedy against your direct employer — that's the deal: employers get immunity from suit, workers get guaranteed (if limited) benefits. The exception is if your employer is also the owner or GC of the project. But in typical multi-party construction, your lawsuit targets the owner and general contractor, not the subcontractor who employs you.

Contest it. File with the Workers' Compensation Board immediately. You have the right to a hearing before a judge. Common denial reasons — claim it's not work-related, dispute the severity, allege a prior condition — are all contestable. Don't accept a denial at face value. And separately, it doesn't affect your third-party §240 lawsuit against the owner and GC.

Many construction accident firms handle both. If yours doesn't, you may need separate counsel — the two areas of law are quite different. What you don't want is a workers' comp attorney trying to handle your §240 case, or a PI attorney advising you badly on the comp side. Ask upfront how the firm handles both tracks.

Appeal it. Work with your treating physicians to document the connection between the injury and the accident. Medical records, accident reports, and witness statements all support the claim. The Workers' Comp Board hears disputes; the burden is manageable. And again, your third-party §240 lawsuit doesn't depend on the comp determination — the legal standards are different.

In some cases, yes — under §241(6) and common law negligence, if the subcontractor created a dangerous condition or controlled the work that caused your injury. §240 is typically limited to owners and GCs. But subcontractor liability is absolutely a theory worth analyzing in your case, particularly if the sub's equipment or work directly caused what happened.

Labor Law §240 cases require knowledge of specific statutes, case law going back decades, the Industrial Code, OSHA regulations, and the mechanics of multi-party construction litigation. A good construction accident attorney knows how to depose a site safety officer, work with engineering experts, and navigate the overlap between workers' comp and the §240 claim. A general PI attorney may never have read the Scaffold Law.

You pay nothing upfront. The attorney takes a percentage of your recovery — typically one-third of the settlement or verdict, though the percentage can vary depending on whether the case settles early or goes to trial. If you recover nothing, you owe nothing. Contingency fees are regulated in New York and must be disclosed in your retainer agreement.

How many §240 cases have you handled and what were the outcomes? Who specifically will work on my case? How do you communicate — calls, portal, email? How long do you expect the case to take? What are the strongest and weakest parts of my claim? Don't just ask if they'll take the case. Ask how they plan to win it.

One to three years is typical, depending on complexity, court calendars, and how aggressively the defendants fight. Straightforward cases with clear liability and documented injuries can settle in under a year. Catastrophic injuries, disputed liability, or large damages often take longer. Trials — if it gets there — add time. Your attorney should give you a realistic timeline at the outset.

Most construction accident cases settle before trial — somewhere in the range of 90 to 95 percent. But the credible threat of trial is what drives good settlements. Defendants pay more when they believe you'll actually try the case. An attorney with a track record of taking cases to verdict gets better settlements than one who always folds. You should be prepared to testify, even if you probably won't have to.

Don't accept it without talking to an attorney first. Early offers from insurance carriers are almost always low — they're made before the full extent of your injuries is known, before the liability picture is fully developed, and before you have counsel. Once you accept and sign, that's it. A phone call to an attorney costs you nothing and could be worth hundreds of thousands of dollars.

Ask directly. Ask how many §240 cases they've taken through discovery, how many they've tried, and what the outcomes were. Look at whether their firm publishes results in construction cases. Check state court records — NYSCEF is searchable. A lawyer who's never filed a Labor Law case in New York has no business taking yours.

Any incident report you received, photos from the scene, names and contact info for witnesses, your medical records and bills to date, your employer's name and the GC and property owner if you know them, any correspondence from an insurance company, and your employment records or pay stubs. Even partial information helps. The attorney will tell you what else to gather.

Yes. Attorney-client privilege applies from the moment of the consultation, even if you don't hire the attorney. You can speak freely. Nothing you say in that meeting can be disclosed without your consent. This is true for any licensed attorney in New York, whether you retain them or not.

On a contingency fee, you owe no attorney's fees if there's no recovery. But you may still owe expenses — filing fees, deposition costs, expert fees — depending on your retainer agreement. Read that agreement carefully. Ask upfront what expenses you'd be responsible for if the case is unsuccessful, and whether those are advanced by the firm or billed to you regardless of outcome.