Representing victims of serious harm and death

Popular Defense of Blaming the Injured Worker Doesn’t Work


In a personal injury action, the plaintiff has the burden of proof. We are all likely familiar with the burden of proof in a criminal case – ‘beyond a reasonable doubt.’ This is not the standard for civil actions. In a civil action the burden of proof is a preponderance of the evidence or more probably true than not. A defense to that burden of proof is to prove that the Plaintiff was more than 50% at fault for the incident that caused the injury. This is the defense strategy most often used in construction accident cases. The reality of a construction site is that it is dynamic, changing, and busy. It is impossible for one to be aware of all situations at all times. This is the very reason that safety regulations and OSHA guidelines exist. The purpose behind these provisions is to make a construction site as safe as possible to avoid accidents that occur in a constantly changing environment. If recognized and known hazards are remedied then injuries are prevented.  Even the most careful and vigilant worker can be injured when a hazard is not remedied on a job site. The other truth that construction workers face is that they are often asked to put themselves in a dangerous position to complete the work. Workers are well aware that if they are unwilling to do the job as asked there are plenty of workers in line to take their place. Recent jury verdicts reflect that jurors do not agree with defense arguments that attempt to pass blame onto the injured worker.

Recently in Bayer v. Panduit Corporation, 07L-9877 an ironworker was injured when he exited his man basket to work on a beam. He did not tie off. The Defendants argued that the Plaintiff was injured as a result of his choice to exit the basket without being tied off. They argued that he chose to engage in a known hazard. They further argued the Plaintiff knew to be tied off. The jury disagreed and rendered a sixty million dollar verdict. Similarly in Callaway v. Bovis Lend Lease, the Plaintiff was killed in a trench collapse. The defendant argued the Plaintiff was instructed to always use trench boxes and elected to enter a trench without a trench box which is a known hazard. The jury disagreed with this argument and returned a nine million dollar verdict. The argument to blame the injured worker for a construction site accident failed again in Wasilewski v. Menard, Inc. 06L-12 where a truck driver was injured while unloading steel rebar from his truck when the rebar rolled off and struck him.  The defense argued the plaintiff was responsible having loosened the cargo strap that held the rebar in place. The jury disagreed and awarded the plaintiff over $600,000.

In the matter of Brainerd v. Walsh Construction Co., 06-L8808 an injured worker sued the general contractor after a roof collapsed on her at a construction site and she suffered an injury to her knee and back. The defendant argued that the plaintiff did not belong in the area where she was at the time of the injury and had previously given the “all clear” to start demolitions.  The jury found in favor of the plaintiff and awarded nearly two million dollars to the plaintiff.  The defendant in Simms v. Pan-Oceanic Engineering Co., 06L-1887 argued the hole the plaintiff stepped in while pushing a wheelbarrow was open and obvious and the plaintiff was not looking where he was going. The jury disagreed. The jury was given a special interrogatory where it was asked whether they found the plaintiff to be more than fifty percent the proximate cause of the occurrence and they answered “no.”

Jury verdicts over the last several years have shown that juries find in favor of the plaintiff in construction accident cases in nearly 70% of cases. These verdicts reflect that jurors understand the realities of the responsibilities placed on workers at construction sites.

Construction workers have difficult jobs. The jobs are demanding and they are dangerous. These men and women work hard. When they are injured it is unfortunately most often serious and devastating injuries. It is critical that an injured worker find a skilled personal injury attorney to represent him in order to ensure he is compensated to the fullest extent possible under our civil system.

Whiting Law Group takes a personal interest in every case that comes into our office. If you are looking for an attorney that will give you undivided individual attention, commitment to excellence, and use every possible resource available to help you win your case, then Mr.Whiting and his team of accident and injury trial lawyers personally invite you to contact them for a free consultation toll free at 1-877-936-7200 or by email at There is no fee unless we win your case.