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Construction Accidents and Premises Liability

Construction is a dangerous job, and most workers know the risks, at least in theory. However, regardless of the nature of the work, the holder of land owes a duty to the people on it to keep them safe. If that duty is breached, it may give rise to an action in what is referred to as .

A Duty of Care

An employer owes a duty to ensure that his employees are not unduly subjected to danger or other unsafe conditions. However, a property owner also owes a duty of care to people who enter onto their land. Until 1976, accepted the common-law classifications of people that had existed for centuries, grouping entrants onto land into one of three categories.

  • An invitee is a person with business on the owner’s land. An example of this category would be a guest at a theme park, or a contractor doing repairs on a private home.
  • A licensee is a social guest, even though they may have been invited onto the land by the owner.
  • A trespasser is someone who is on the property without the owner’s permission.

Each of these categories mandated a different level of care from a property owner. However, the case of Basso v. Miller, 40 NY2d 233 (1976) abolished these categories in favor of a single standard of “reasonable care,” to be similar to that required in negligence cases. A property owner must keep their property in good repair and “reasonably safe” conditions, with factors like foreseeability and apportionment of fault to be taken into account as necessary.

Under the old system, a construction worker or contractor would have qualified as an invitee, thus the higher standard would have applied. The duty owed to an invitee was an affirmative one – the owner must act to eliminate any dangers on their land that they are aware of or should have been aware of. The duty owed to licensees and trespassers was not affirmative; merely a general duty to not actively propagate any dangers or put anyone intentionally in harm’s way. Thus, if a contractor, for example, fell off a ladder when it sank into unstable ground, he would have a claim for premises liability if the property owner had not attempted to correct the problem.


The Basso opinion references foreseeability as a factor that must influence liability. It is important to make a note of this, because with status no longer the determinative factor, juries have to weigh more information in making their decision.

Foreseeability is defined as the probability that injury or death may occur as a result of a certain action. This is especially important with exhaustive jobs like construction work, because workers in that position may be more inclined to use more of the land, and thus need to be warned about more dangers. It is much more foreseeable that someone engaged in heavy work might meet with a danger on the land than someone who stays seated in the house. The general rule is that the more foreseeable the danger is by a reasonable person, the less liability an owner will bear for not informing them of it, or acting to remove it.

This evaluation of foreseeability plays into the modern standard of premises liability as generally more flexible than the common-law categories. Foreseeability is an important factor – possibly the most important – but it is one of many, which gives the court a tremendous amount of leeway in determining the most fair result.

Contact A Construction Accident Attorney

If you have been injured in a construction accident, you may have a claim against the property owner. The experienced professionals at the are ready, willing and able to assist you in your case. Contact our New York City offices today for a free initial consultation.