Resource Guide
Third-Party Claims After a Construction Accident — Going Beyond Workers' Comp
Workers' comp pays a fraction of what you're entitled to. A third-party claim against the property owner or general contractor can recover far more — including pain and suffering, which comp never covers.
What Workers' Comp Actually Covers
Workers' compensation covers two things: your medical bills and a portion of your lost wages (typically two-thirds of your average weekly wage, up to a state cap). That's it. Workers' comp pays nothing for:
- Pain and suffering
- Permanent disability beyond the scheduled amounts
- Your full lost wages (comp replaces about 2/3, capped)
- Future lost earning capacity
- Quality of life impacts
Workers' comp is also a "no fault" system with a trade-off: in exchange for guaranteed benefits, you generally cannot sue your direct employer. But you can sue other parties whose negligence contributed to your injury — and that's where third-party claims come in.
Who You Can Sue: Labor Law § 240 and § 241
New York Labor Law § 240(1) — the "Scaffold Law" — imposes absolute liability on:
- Property owners — the entity that owns the building or land where the work was done
- General contractors — the GC managing the construction project
- Their agents — parties acting on behalf of the owner or GC
"Absolute liability" means that if your injury was caused by a gravity-related hazard and proper safety devices weren't provided, you win on that element — regardless of whether you were partially at fault. The property owner and GC cannot blame you as a complete defense.
Labor Law § 241(6) covers a broader range of construction accidents and can reach additional defendants. Section § 200 covers general negligence, including premises defects and equipment failures.
Other Potential Defendants
Depending on how the accident happened, you may have claims against parties beyond the owner and GC:
Equipment Manufacturers
If a defective ladder, scaffold, hoist, power tool, or piece of equipment caused your injury, the manufacturer may be liable under product liability law. This is separate from Labor Law and can result in significant additional recovery.
Equipment Rental Companies
Companies that rent construction equipment have obligations to ensure the equipment is safe and properly maintained. If a rented scaffold or lift malfunctioned, the rental company may share liability.
Other Subcontractors
If a subcontractor other than your employer created the dangerous condition — left a floor opening uncovered, removed a guardrail, spilled oil — that sub may be liable to you.
Architects and Engineers
In limited circumstances, design professionals who exercised supervisory control over the work can be held liable. Standard § 240/241 exemptions apply when they don't direct work.
The Workers' Comp Lien
When you receive workers' comp benefits and then win a third-party lawsuit, your employer's workers' comp carrier has a right to be reimbursed from your lawsuit proceeds. This is called a "workers' comp lien."
Under Workers' Compensation Law § 29, the carrier's lien is limited to the amount they paid in benefits — not the full value of your case. Your attorney can negotiate to reduce the lien amount, and the carrier must share in attorney fees and litigation costs proportionally.
A workers' comp lien does not eliminate your third-party recovery — it just means part of your settlement reimburses the comp carrier. The remaining recovery is yours. And third-party settlements in Labor Law cases routinely far exceed total comp benefits.
Why Third-Party Claims Are Almost Always Worth More
Compare what each claim can recover:
| Type of Damages | Workers' Comp | Third-Party Lawsuit |
|---|---|---|
| Medical bills | Yes | Yes |
| Lost wages (partial) | Yes (2/3, capped) | Yes (full amount) |
| Future lost earning capacity | Limited | Yes |
| Pain and suffering | No | Yes |
| Permanent disability | Schedule only | Yes (full jury award) |
| Loss of consortium (spouse) | No | Yes |
Frequently Asked Questions
Can I file a third-party claim while also receiving workers' comp?
Yes. You should file both. Continue receiving workers' comp benefits during your recovery while your attorney pursues the third-party lawsuit. The two claims run simultaneously.
I work for a subcontractor. Can I sue the general contractor?
Yes, and this is one of the most common constructions of a Labor Law case. Your employer (the sub) is protected by workers' comp. But the GC and property owner are proper defendants in a § 240 or § 241 claim, even though they didn't directly employ you.
What if the property owner is also my employer?
This is more complex. When an owner is also an employer, the workers' comp bar may prevent a § 240 claim in some circumstances. The analysis is fact-specific — this is exactly the situation that requires an experienced Labor Law attorney.
How do I find out who owns the property where I was injured?
NYC property ownership is public record, searchable through ACRIS (Automated City Register Information System) on the NYC website. Your attorney will also search the DOB permit to identify the owner, GC, and all permitted subs.
If the property is a private homeowner, can I still sue?
Generally no — Labor Law § 240 has an exemption for one- and two-family dwellings when the owner does not direct or control the work. This exemption is often litigated and doesn't apply in all situations. An attorney can analyze whether the homeowner exemption applies to your specific case.
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