An In-depth Look at Personal Injury, Contractual Complexities, and the Quest for Liability in School Construction Accidents
The article explores a complex personal injury case managed by Elan Wurtzel, a personal injury attorney, and Ira Seligman, an attorney focusing on commercial matters. The case involves a school teacher injured due to construction hazards at her workplace. This situation brings up critical questions about liability, contractual obligations, insurance, and the role of various contractors and subcontractors.
Elan, please tell us a little bit about yourself.
Elan: Sure, thanks for having us. My name is Elan Wurtzel, and I’m a personal injury attorney. I have an office in Plainview, Long Island. We practice throughout the metropolitan area and handle cases involving injuries and accidents where people are seriously hurt. We help people recover from those injuries and get compensation for the damages caused by other people’s negligence. I love my work, and I love helping people whenever I can.
Ira, please tell us a little bit about yourself.
Ira Seligman: Thanks so much for having me. I look forward to getting into some exciting topics we’ll be discussing. My name is Ira Seligman, and I’m an attorney for the law firm of Richman & Levine. We’re located in Garden City, and my practice focuses on commercial matters. So, all business issues, including contracts litigation and disputes involving businesses.
We try to get our clients efficient results and create creative solutions to sometimes complex questions, and we love what we do here. We’re here to help businesses solve their legal problems and allow them to focus on running their business.
Elan, can you briefly summarize the case where your client was injured at the school?
Elan: We’re currently handling a case of a school teacher on her first day back to school. Several years ago, this teacher was injured in the building; at the time, the building was being upgraded in various ways. At the time of the accident, active construction activities were happening inside the building where the teachers were working and coming into the school.
Not only was there active construction going on but there were construction materials in the hallways, such as tools and other things the workers used. Unfortunately, one of the construction materials was placed so that if you were to exit an office doorway, you would hit this material, which is precisely what happened.
My client was leaving an office; it was the first time anyone exited it from that door exit that morning. The material was placed in front of the door, and you couldn’t see the material from inside because of the closed door. The teacher walked out of the office and knocked into this material, which was very heavy. It fell on her foot, causing her to fall and sustaining severe injuries.
This accident occurred about five years ago and is an active case. One of the interesting things about the case is that the school district hired multiple contractors to work on the project. Some of the contractors had supervisory roles; some of them were general contractors, and the general contractor hired subcontractors who hired other subcontractors who hired other subcontractors.
A whole chain of construction companies were working on this project. Unfortunately for my client, each one says, “not our responsibility.” They’re relying on their contracts with the school district and each other to insulate themselves from liability – it’s been a highly complex case.
What kind of personal injury case would you say this is? Also, please elaborate on the specific legal aspects involved in it.
Elan: This would be considered a general negligence or a premises liability case because a dangerous condition existed in her place of employment. It would be a different case if she were a construction worker. But she was an employee of the school district who was in the school and got hurt. So, it’s a general negligence/premises liability case. Other kinds of premises liability are defective sidewalks, elevators, stairs, handrails, or other conditions in a building.
How did the contractors rely on their contracts? Also, can you provide some examples of how the contracts played a role in the case?
Elan: Ira would appreciate this; each of these contractors had very detailed contracts specifying what they are responsible for and what their subcontractors are responsible for, and most importantly, in all of their contracts, they absolve themselves from any responsibility for the means and methods used by a subcontractor. So, how one subcontractor did their work, such as nailing something in the wall or putting equipment in the hallway, they absolve themselves from that responsibility. Also, the school district hired a construction manager who said, “Hey, we’re not in charge of these guys doing all their work. We’re in charge of his scheduling and ensuring that the project stays on time.”
When the school district bid out the project, they incorporated a manual into every contract. That manual specifically provided rules for when work was to be done and where it was to be done. One of the essential things in that manual, which also incorporated some state regulations, says that when teachers are on site doing their job, there’s to be no construction activity in the same place and time as when teachers are working.
That rule was essential to the school contracts and incorporated into any contract related to the job. So when all these contractors say they are not responsible for what subcontractors did – we say, you may not have been responsible for the wrongful placement of this material in the doorway, but you are responsible for ensuring that no work was to be in the same place and time as when teachers are on the site.
Ira, would you like to comment if you’ve worked with people with these contracts and what your role would be?
Ira Seligman: In the first instance, what Elan said is true – there are always complex contractual relationships between contractors and subcontractors, contractors and owners, and then we throw the construction manager into the mix – it muddies up the waters. When issues arise, and an attorney comes in, he negotiates those provisions. The extent of those provision’s protections, when the protections are appropriate, and when protections go too far. Specifically, what are contractors’ insurance requirements, and what do they pass on to their subcontractors?
Liability is always an issue, Elan might agree, and it is equally important that an insurance policy protects the plaintiff’s financial losses because a corporation only exists within a financial construct. So when liability can exceed their financial assets, they can declare bankruptcy and sometimes wipe away a plaintiff’s cause of action. An insurance carrier can step in and assume that financial burden and take it out of the hands of the corporation or LLC so that there’s no risk of those claims necessarily being wiped away in bankruptcy.
Elan: Interestingly, Ira mentions insurance, and it’s an essential part of what we do. In this case, the contractor who put the material in front of this doorway was uninsured. When they secured the job, they provided a certificate of insurance as part of their contractual obligations, and we have since learned that the insurance was canceled shortly after that. So, at the time of the accident, that particular contractor was uninsured, and that’s why we have focused so much attention on all the other contractors upstream because they all have insurance. But they’re all saying they are not responsible.
Motions for summary judgment were filed by the defendants, seeking to dismiss our client’s claims. The Court denied those motions by the defendants, stating a jury would have to determine all the case issues. One of the defendants said, “Hey, Judge, we asked you to make our subcontractors take over our defense and provide coverage” because the contracts between the parties required this. This is a significant part of these cases: insurance coverage, who’s responsible, and where the liabilities shift. I know Ira does a lot of that stuff and is very familiar with it.
Ira Seligman: One of the other important things that sometimes gets lost in litigation is the plumber, or even the GC might need a business relationship with the architect. So sometimes you have issues where there’s no “privity of contract” between parties, so they can’t sue each other for the same loss. That presents problems in allocating damages and can legally cause some complications. We’ve seen a lot of instances where an owner has sued an engineer, for example, but an architect brought in that engineer, and the plaintiff didn’t sue the architect, so they couldn’t go after the engineer directly because there’s no privity of contract.
So you’re not only getting to keep your contractual relationships. They have to be organized appropriately, but also the duties of the contractors come into play. So, there’s a whole complex web of interactions. This case is the perfect example, but they can get even more complicated when you throw in architects, engineers, construction managers, safety supervisors, and owner representatives. On larger construction jobs, you can have five first-level contractual relationships. Then, you get into subs, suppliers, and materials. All these interactions here must be dealt with via contract, which comes into play when you’re in litigation.
What legal strategies did you end up using, and what was the case outcome in this case?
Elan: The case still needs to be finished; it’s ongoing. So, there are multiple defendants. There’s been one appeal regarding a legal issue, which we won. All of the defendants moved to file a motion for summary judgment about a year or so ago to dismiss the case. This past year, the court issued an order saying, “Nope, not dismissing.” The case has to be resolved by a jury trial. We got that decision in August; all defendants filed notices of appeal.
It’s been a very complex case. We’ve had to hire experts and have spent much time and effort. We have conducted close to a dozen depositions. We’ve deposed the school superintendent, the principal, and every one of the contractors involved. The accident was straightforward and caught on videotape, so you see what happened and who screwed up. But because that party has no insurance, we’ve had to be very creative in our approach to the case. We hope the case will be successfully resolved on behalf of our client.
In what way would this case have an impact on contract law?
Ira Seligman: Many contracts, especially between owners and contractors, are subject to insurance. Contract law is straightforward because the elements are very clear, but contracts are subject to lengthy disputes where you have ambiguity or uncertainty. The language of a requirement in a contract or the definition of a word can lead to very long and complex lawsuits. So, it depends on the language in these contracts, but significant legal decisions on contract law involve turning phrases and specific situations.
Elan: One interesting thing that has come up in this case is the distinction between what the law and contracts require and what happens in the real world. The contracts are a million pages long. However, the focus of the project is to get this school upgraded. Let’s get it done quickly; it’s got to be done before school starts, before kids come in and let’s rush. Invariably, practical practicalities take over, and corners are cut; that’s why people get hurt. In this case, one of the attorneys during the deposition questioned a witness, saying, “Didn’t the contract require you to do A, B, C, D, E?” The witness responded, Yes, but no one ever does that.
Ira Seligman: Right, contractors love saying that.
Elan: No doubt– that’s on paper, but that’s not the real world, and we see that all the time. But when someone gets hurt, A, B, C, D, E is essential. That’s why it’s there: if you want to cut corners, you must be accountable if someone gets hurt.
Ira Seligman: The scary thing is that contractors and other businesses think they can follow the contract details more relaxed. “No one does it that way; nobody ever checks you” – you hear that often. But that’s why the law exists in the first place; that’s why they’re regulated; that’s why there’s a code.
The real world is subject to all of these things, and ultimately, an attorney points to those controlling items if it’s a statute-regulation contract provision. More often than not, a judge will not recognize the “real-world consideration” because those other things, such as the law, regulation, or contractual provision, are there for a reason, and they’ve been agreed to, or you’re bound by them legally.
If people wanted to get in touch with you to learn more about what you do with contract law or business law, what would they do to get in touch?
Ira Seligman: Our phone number at the firm is (516) 228-9444, and my email address is [email protected]. We’re happy to have a conversation, and no issue or question is too big or too small. The law is a complex world, and we’re here to help. Thank you so much for having me. This discussion was great, and I’m honored to have participated in it.
Elan, if someone has a personal injury, how would they contact you, and what are your fees?
Elan: We’re easy to get in touch with. Our email is [email protected], and our phone number is (516) 822-7866. We practice throughout the metropolitan area. You can call us or email us. We can meet you in person or virtually by Zoom. We want to do whatever works for our clients. Our fees are based on a contingency. There is no legal fee unless there’s a recovery on behalf of the client; the legal fee is one-third of the amount collected, and that’s standard throughout the state. We’re always happy to talk to people and see if we can help.