Frequently Asked Questions About Construction Accidents in Indiana

After a construction site accident occurs, the necessary medical attention has been obtained for the injured, and the accident site has been rendered safe, steps should be taken to notify the appropriate persons of the incident. The individuals notified should include the on-site superintendent and foreman for the employer and any other on-site superintendents responsible for the control and safety of the scene of the incident. If specific individuals have been designated to monitor site safety, of course these individuals should be notified as well.

For incidents resulting in certain injuries, it is legally required that OSHA, known in Indiana as IOSHA, be notified of the incident. IOSHA operates under the authority of the Indiana Department of Labor, which has its own set of regulations that must be at least as effective as federal OSHA standards. 29 CFR 1902.7. There is a requirement that the notification must be made within eight hours for fatalities, 29 CFR 1904.39(a)(1), and twenty-four hours for hospitalizations, amputations, or the loss of an eye. 29 CFR 1904.39(a)2). The injury-causing event should be well-documented through video, photos, and statements of fact witnesses. Clothing and equipment, if relevant to the injury, should be preserved.

For a member of the public who is injured at a construction site, general principles of negligence will apply to any claims that might be brought against the negligent parties. However, for construction workers, it is more complex, as an employee’s recovery against an employer is limited by worker’s compensation. As an employee, workers’ compensation will be the first and primary route of recovery to secure replacement income if the injury renders the worker unable to work, as well as for the payment of medical expenses. However, worker’s compensation does not allow for the recovery of many of the elements of damages allowed under a general negligence claim, such as pain and suffering and loss of enjoyment of life.

If a third party (like a general contractor, other subcontractor, or equipment manufacturer) is involved there could potentially be viable claims for negligence against these third parties. Such a claim against third parties in Indiana requires an extensive investigation and its viability will ultimately depend upon a number of factors as explained further below.

There can be a potential general negligence claim against the property owners of the construction site under a premises liability theory of recovery if they exercised control over the site at the time of the incident or failed to disclose an unreasonably dangerous condition that existed on the property. There also may be a potential product liability claim if defective equipment was involved. However, ordinarily the issue of third-party liability for a construction site accident revolves around who ultimately agreed with the property owner to be responsible for ensuring worksite safety.

Ordinarily, a general contractor owes no duty to its subcontractors’ employees. See Bagley v. Insight Commc’ns Co., L.P., 658 N.E.2d 584, 586 (Ind. 1995). Therefore, even when a subcontractor allows unsafe conditions to exist on the worksite, the general contractor will not incur liability for an employee’s injury. Ryan v. TCI Architects/Engineers/Contractors, Inc., 72 N.E.3d 913. This is because the general contractor exercised little or no control over the means and methods of construction. Id. at 913.

This above general rule, however, is subject to five exceptions, Bagley, 658 N.E.2d at 586. Probably the most often-cited exception is where the general contractor takes on a contractual obligation to the owner to perform a specific duty, such as enforcing workplace safety rules and regulations (such as those promulgated by OSHA). Ryan, 72 N.E.3d at 913. This exception applies when a general contractor’s contract demonstrates an intentional assumption of a duty of care.Stumpf v. Hagerman Const. Corp., 863 N.E.2d 871, 876 (Ind.Ct.App. 2007). 

This duty imposed by contract is considered non-delegable and, as such, once undertaken, encourages the general contractor to minimize the risk of resulting injuries. Ryan, 72 N.E.3d at 914. The general contractor is vicariously and jointly liable for its subcontractor’s negligence, Stumpf, 863 N.E.2d at 876-877, meaning that the subcontractor’s negligence is imputed or passed along to the general contractor by law. Harris v. Kettlehut Constr., Inc., 468 N.E.2d 1069, 1076-1077 (Ind.Ct.App. 1984).

Non-delegable duties are considered “important to the community” and specifically contemplated to benefit employees of subcontractors. Bagley, 658 N.E.2d at 587. Moreover, Indiana courts have stated that the mere fact that worker’s compensation benefits may be available does not change the important policy consideration of protecting the public and workers from dangerous, but otherwise preventable, construction practices. Bagley, 658 N.E.2d at 588. 

Indiana courts will focus on the intent demonstrated by the plan and unambiguous contract language. Ryan, 72 N.E.3d at 914. In Ryan, the Indiana Supreme Court found that a general contractor assumed a non-delegable duty of care finding the contractor (1) assumed “responsibility for implementing and monitoring all safety precautions and programs related to work performance”; (2) “demonstrate[d] an intent to control” the worksite; and (3) “charg[ed] [the general contractor] with the duty of designating a safety representative to perform inspections and hold safety meetings with contractors.” Id. at 915. 

To be vicariously liable means that two parties are jointly responsible and liable for the harm caused. See Harris, 468 N.E.2d at 107 (general contractor and subcontractor jointly liable because of non-delegable duty).

The Indiana Worker’s Compensation Act, established in 1915, is found beginning at Indiana Code § 22-3-3-1. The Act aims to provide benefits to employees injured on the job, ensuring they receive necessary medical care and financial support while protecting employers from lawsuits. This system is mandatory for most employers, covering employees regardless of the company’s size.

A worker should put their employer on notice of the injury immediately, but no later than thirty (30) days from the injury. I.C. § 22-3-3-1. Failure to do so may jeopardize the claim. A claim must be brought no later than two years from the date of the injury, although if temporary partial or temporary total disability benefits have been paid and are stopped, the two-year time period for bringing the claim runs from the date of the last payment of those benefits. I.C. 22-3-3-3. Workers’ compensation also provides benefits for medical expenses, including doctor visits, hospital stays, and medications deemed reasonable and necessary and related to the work injury.

Employees can receive 66.6% of their average weekly wages if they must miss work due to injury. I.C. 22-3-3-8. Benefits start if the absence exceeds 7 days, but there is a waiting period where benefits for the first week are not paid until the employee has been out of work for 21 days. I.C. 22-3-3-7. If the injury results in death, death benefits are recoverable by the beneficiaries. I.C. 22-3-3-17.

If a claim is denied or benefits are contested, employees can appeal or file an Application for Adjustment of Claim with the Workers’ Compensation Board. I.C. 22-3-4-5. The Board offers both formal adjudication and informal dispute resolution services such as mediation. I.C. 22-3-4-4.5.

You might still be eligible for benefits through the Indiana Workers’ Compensation Board. An employer who fails to carry worker’s compensation insurance is guilty of a Class A misdemeanor and enhanced remedies are available to the employee. I.C. 22-3-4-13.

Generally, you have two years from the date of the accident to file a personal injury lawsuit in Indiana. For workers’ comp, it is crucial to report the injury to your employer within 30 days and to bring the claim not later than two years, although the time to file an Application for Adjustment of Claim is extended two years beyond the last payment of temporary partial or temporary total disability benefits. I.C. 22-3-3-3.

Beyond medical expenses and lost wages available under worker’s compensation, in a case against a third-party a jury can award compensation for the nature and extent of the injury and the effect on your ability to function as a whole person, disfigurement or deformity, physical and mental pain and suffering, loss of enjoyment of life, permanent impairment or disability, and impairment of your future earning capacity. In the case of a construction accident resulting in wrongful death, compensation will be dictated by Indiana’s wrongful death statute. I.C. 34-23-1-1 et seq.

Construction accident cases are fraught with legal complexities due to the involvement of multiple parties with various levels of involvement often spelled out in lengthy contracts and subcontracts that are not publicly available. Although the information that may be necessary to succeed in a lawsuit may not be available prior to filing a lawsuit, a lawyer will be able to obtain them during the discovery phase of the case when the parties request and exchange documents and information.

Depending on the size and complexity of the construction, there may also be architects and engineers involved in various aspects of design. With multiple contracts and parties, there are often multiple insurance policies with provisions that may overlap or conflict. Many times, after a construction injury or death lawsuit has been filed, insurance companies will file separate lawsuits, known as declaratory judgment actions, requesting that the court declare their responsibility under their policy of insurance as applied to the facts. The injured worker will be named as a party in this lawsuit.

An injured worker who has received worker’s compensation benefits will also be required to reimburse the employer’s insurance company consistent with Indiana statutory law. A lawyer with construction injury law experience can navigate these waters, ensuring all liable parties are sued and can be held accountable, not just your employer.

Under workers’ comp, you will be directed to use certain medical providers by your employee. This care is often overseen by a nurse case manager. You may go to your own doctor, but you, not your employer, will be responsible unless your employer agrees otherwise. However, when the worker’s compensation insurer’s doctor determines you have reached maximum medical improvement, you will be entitled to an independent examination at your employer’s expense. I.C. 22-3-4-11.

Indiana follows a modified comparative fault rule, meaning if you’re less than 50% at fault, you can still recover damages, but they’ll be reduced by your percentage of fault.

Indiana law requires that you receive your employer’s written consent to settle your claim against a third-party or your worker’s compensation claim will be extinguished by statute. I.C. 22-3-2-13(i). The worker’s compensation insurer must be repaid in full, but if a lawyer was hired, this repayment will be reduced by statute by twenty-five percent if the claim is settled before a lawsuit is filed or by one-third if a lawsuit was filed. I.C. 22-3-2-13(h). This reduction recognizes the lawyer’s role in helping secure a recovery.

Experienced construction injury lawyers will often work out different arrangements that can be significantly more beneficial to the injured worker depending on various factors, such as potential fault of the worker or issues with proving an injury was related or pre-existing. If an attorney is unable to reach a voluntary compromise with the worker’s compensation insurer, a lawsuit may be filed against the insurer (if they have not already intervened in the case to protect their interest) to compromise the claim pursuant to Indiana’s Declaratory Judgment Act, I.C. 34-14-1-1, and through Indianan’s Lien Reduction Statute. I.C. 34-51-2-19.

Our Indiana construction injury and wrongful death lawyers have over thirty years of experience handling construction accident cases. Attorney Todd Barsumian also has prior experience as a defense attorney defending construction injury cases, so he brings this knowledge to his injured client’s case. We treat each case with the care and attention it deserves, not just another file. We provide a free consultation, so the sooner you act, the better we can serve you. Give us a call today to see if we can help.