Accident Lawyer Construction Accident 5 — Questions and Answers
Question 1: A worker misses a comp filing deadline because the employer never posted required notices about reporting procedures. What doctrine may excuse the late claim?
- Equitable tolling or estoppel based on the employer's noncompliance (Correct answer)
- Res judicata
- The parol evidence rule
- Forum non conveniens
Correct answer: Equitable tolling or estoppel based on the employer's noncompliance
Employer failure to give statutorily required notice can equitably toll deadlines or estop the employer from asserting them.
Question 2: An architect's defective structural drawings cause a partial building collapse that injures workers. What is this type of claim against the architect commonly called?
- Professional negligence (malpractice) (Correct answer)
- Wrongful termination
- Conversion
- Tortious interference
Correct answer: Professional negligence (malpractice)
Claims against design professionals for errors in plans are professional negligence claims measured against the standard of care of their profession.
Question 3: During settlement of a catastrophic construction injury, why must the lawyer address Medicare's interests if the client is a beneficiary?
- Federal law requires protecting Medicare's interests, often via a set-aside, or reimbursement obligations arise (Correct answer)
- Medicare must approve all settlement language
- Medicare pays the defendant's share
- Settlements are void without a Medicare co-signature
Correct answer: Federal law requires protecting Medicare's interests, often via a set-aside, or reimbursement obligations arise
The Medicare Secondary Payer Act requires that Medicare's past and future interests be considered, or the parties risk repayment demands and penalties.
Question 4: A day laborer hired through a staffing agency is injured at a client contractor's site. Under the borrowed-employee doctrine, what is the likely effect?
- The client contractor may also gain comp exclusivity protection as a special employer (Correct answer)
- The laborer can never receive any workers' compensation
- The staffing agency automatically faces strict liability
- The laborer must sue OSHA directly
Correct answer: The client contractor may also gain comp exclusivity protection as a special employer
Where the client controls the worker's tasks, it may qualify as a special employer shielded by workers' compensation exclusivity.
Question 5: Which expert witness is most essential to prove that a contractor's site practices fell below industry safety standards?
- A construction safety expert familiar with OSHA and industry customs (Correct answer)
- A forensic accountant
- A treating psychiatrist
- A real estate appraiser
Correct answer: A construction safety expert familiar with OSHA and industry customs
A construction safety expert establishes the standard of care and how the defendant's practices deviated from it.
Question 6: A construction worker dies in a scaffold collapse leaving a spouse and two children. Which claim seeks damages for the family's own losses, such as lost financial support?
- A wrongful death action (Correct answer)
- A survival action for the decedent's pre-death pain
- A loss of chance claim
- A quantum meruit claim
Correct answer: A wrongful death action
Wrongful death actions compensate surviving family members for their losses, while survival actions cover the decedent's own pre-death damages.
Question 7: Defense counsel argues a worker 'assumed the risk' by working on a visibly unstable scaffold he was ordered onto. Why does this defense usually fail in construction cases?
- Workers face economic compulsion and many states bar or fold the defense into comparative fault (Correct answer)
- Assumption of risk applies only to sporting events
- Scaffolds are legally incapable of being dangerous
- The defense requires a written waiver signed by OSHA
Correct answer: Workers face economic compulsion and many states bar or fold the defense into comparative fault
Courts recognize workers cannot freely refuse assigned tasks, and most states have merged assumption of risk into comparative negligence or barred it under statutes like New York's Scaffold Law.
Accident Lawyer Construction Accident 5
A worker misses a comp filing deadline because the employer never posted required notices about reporting procedures.
What doctrine may excuse the late claim?