A Defective Tool

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Q: At work, I needed to pressure-test an enormous old pipe (42 inches in diameter) for leaks.  The testing gadget appeared somewhat worn and used, but normal enough.  I crawled four feet into the pipe and inflated the device, ever so slightly.

On the tool, I noticed several air bubbles.  This suggested a leak.  I called over my supervisor.  But – too late – as soon as she stepped over, boom!  The gadget exploded without warning and propelled me high into the air.  Can I sue the property owner?  What about the general contractor?

A: For a worker to recover in negligence, she must generally fit her case into one of two categories.  (1) Injury as a result of something that was dangerous about the work site itself.  (2) Injury because of the manner in which the work was performed.  Your attorney will need to determine the strength of your case in each of these categories.

Suppose that the old pipe itself was dangerous.  When a claim arises out of such a condition, the property owner or general contractor may be exposed to liability if it either (1) created the dangerous condition causing an injury or (2) failed to remedy the dangerous condition upon having actual or constructive notice of it.

Suppose that the testing instrument was defective.  To recover for common-law negligence (or a violation of Labor Law § 200), you must show that the defendant had the authority to supervise or control the performance of the work.  Often, a savvy owner is careful to make sure in advance that it will not have that authority.  On the other hand, a GC’s role might necessitate that it possess that authority.

By: Scott Baron,
Attorney at Law Advertorial

The law responds to changed conditions; exceptions and variations abound. Here, the information is general; always seek out competent counsel. This article shall not be construed as legal advice.

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