Securing Evidence in New York Construction Accident Cases

The key to a successful construction accident lawsuit is evidence. An experienced attorney will act quickly to collect every possible shred of evidence that can be used to support your case and hold the responsible parties accountable for failing to provide a safe work environment.

From initial evaluations and interviews to hiring investigators to ensuring the evidence we collect is admissible in court, the attorneys at Block O’Toole & Murphy go above and beyond to build the strongest case possible for every one of our clients.

Need to Know:

• Conditions on construction sites change rapidly, making it crucial that evidence is collected as soon as possible.
• Construction accident witnesses are often coworkers of the injured person, and may be hesitant to testify if they are concerned about employer retribution.
• Construction accident evidence may need to be stored securely to be admissible in court.

In This Article:

• The Challenges of Early Investigation After Construction Accidents
• After a Construction Accident: Filing FOIA and FOIL Requests
• Locating and Retaining Construction Accident Witnesses
• How Do We Make Construction Accident Evidence Admissible?

The Challenges of Early Investigation After Construction Accidents

In all personal injury cases, our attorneys prioritize getting to the site to investigate as early as possible. However, there are occasional hurdles to overcome:

• Construction site owners and operators act quickly to clear up evidence of accidents.
• Defendants may send defective or damaged equipment to be scrapped before our investigators or even inspectors from agencies like OSHA or the Department of Buildings can see it.  

To prevent the above issues, our attorneys will send preservation letters, which inform the owners that any equipment involved in the accident must remain untouched and maintained in the same or as close to the same condition as it was in at the time of the accident. 

Our attorneys have also filed motions to begin site inspections earlier than the normal course of the discovery process would allow for, even requesting permission to inspect active sites.

How Early Investigation Secured Crucial Evidence in a $12 Million Construction Accident Lawsuit

In one case we handled, our client was a union tunnel worker who fell into a trench while working on the Number 7 extension project in Manhattan. He was not provided with an appropriate harness to wear at the time. The working conditions around this trench were constantly changing, and we knew proving fault would require demonstrating that required protective devices were not adequately installed at the time of our client’s accident.

The defense was prepared to testify that the construction site was equipped with all the lanyards and harnesses that workers could need to operate safely. But filing a petition with the court allowed Partners Daniel O’Toole and David Scher to examine the active site for themselves.

Our inspection revealed that the site’s only anchorage points — that is, the places where workers could tie harnesses — were located far away from the trench. By hiring an expert in construction site safety who could testify to how this condition made the work required on the site impractical, we were able to settle our client’s case for $12,000,000.

After a Construction Accident: Filing FOIA and FOIL Requests 

In cases that involve federal or state agencies, we also issue Freedom of Information Act (FOIA) and Freedom of Information Law (FOIL) requests for information that may be on record. Our attorneys are dogged in their pursuit of FOIA and FOIL results, and have even traveled to federal and state offices to ask for the results directly when emails and telephone calls were ignored.

Using FOIA and FOIL Requests for OSHA Investigations

If your accident was a serious one, it’s likely that an Occupational Safety and Health Administration (OSHA) inspection will be in progress at the same time as your attorney’s investigation. A good attorney will stay as informed as possible about this investigation as it unfolds, starting by being present for any conversations you may have with the OSHA investigator who reaches out to you.

Still, there are limits to how much access your attorney has to an OSHA investigation. While Freedom of Information Act (FOIA) requests can grant access to the results of OSHA investigations, those results typically won’t be available until after the investigation is concluded. In the meantime, your attorney may find it worthwhile to dive into the company’s past OSHA records for details on how prior accidents were handled.

This helped us greatly in a case we handled for an iron worker who was injured by steel beams as he attempted to unload them from a flatbed delivery truck. Although the beams in the truck were improperly stacked, the company that owned the delivery truck claimed that our client’s company was entirely responsible for his accident, which would have made his injury solely a matter for workers’ compensation.

However, our attorneys found newspaper articles that testified to two prior employee deaths at the defendant company. When the defendant resisted our request for information regarding these accidents, we filed a FOIA request for the OSHA records. After the defendant knew we had this information, they were more willing to negotiate, and we ultimately obtained a settlement of $7,000,000. 

Locating and Retaining Construction Accident Witnesses

Witness statements are another form of accident evidence that can be pivotal to construction cases. Often, witnesses are relatively easy to find, as they are usually coworkers of the accident victim. However, there may still be challenges to deal with:

• Memories fade. Your attorney should not delay in interviewing witnesses. It’s important to collect this evidence while their memories of the incident are still clear.
• Some witnesses are reluctant to testify. Coworkers may try to avoid participating in investigations or giving testimony because they’re concerned about their job security. This is particularly true for potential witnesses who may be undocumented or otherwise have past legal troubles.

Although an attorney could serve a subpoena to force a witness to testify, willing participation leads to better results. Our attorneys encourage witnesses to participate by addressing their concerns and keeping them informed of their rights.

How Do We Ensure Construction Accident Evidence Is Admissible?

Materials must be deemed relevant and authentic to be admitted into evidence.

Evidence is relevant if it supports or refutes an important issue in the case. For example, a work contract may be clear evidence of which parties are at fault for any accidents on a job site.

Our attorneys ensure authenticity in a variety of ways, depending on the evidence:

• We hire an investigator to take digital photos of the accident scene from different angles, ensuring the details of the scene unambiguously clear. We also have the investigator prepare a written statement and an affidavit clearly stating the time and place where the photos were taken.
• Physical items of evidence need to be stored securely to ensure that they are not tampered with. We make sure that they are touched by as few people as possible. In some cases, we may store particularly sensitive items in storage facilities under sterile conditions.

Get a Free Legal Consultation With the Construction Accident Lawyers at Block O’Toole & Murphy

The attorneys at Block O’Toole & Murphy are well-versed in New York labor law. We’ve obtained countless strong settlements for construction accident victims, including a $53.5 million settlement for a construction worker who was paralyzed after a fall and an $11.5 million settlement for a worker who suffered severe wrist injuries due to a defective circular saw.

Our attorneys serve all five boroughs of New York City as well as the entirety of New York State and New Jersey. Contact the experienced personal injury attorneys at Block O’Toole & Murphy to receive a free legal consultation by calling 212-736-5300, or by filling out our online contact form.