OSHA was created by the Occupational Safety and Health Act of 1970; the goal of the Act is to ensure that employers provide employees with a work environment free from recognized hazards, such as exposure to toxic chemicals, falls from elevated places, mechanical dangers, or unsanitary conditions.

To ensure the safety of employees, OSHA created a vast list of safety requirements that employers are required to comply with.  For example, an employer is required to instruct each employee in the recognition and avoidance of unsafe condition(s) and the regulation(s) applicable to the employees work environment to control or eliminate hazard(s) or other exposure to illness or injury [29 CFR 1926.21(b)(2)].

In addition to general safety requirements, an example of which is above, there are also safety requirements specific to the type of tool or machinery utilized on the job site.  For example, if a scaffold is in use, the planks must extend over their end supports not less than 6 inches nor more than 18 inches [29 CFR 1910.28(a)(13)].  Or, if a portable circular saw is in use, the saw must have an upper guard that covers the entire blade of the saw and a retractable lower guard [29 CFR 1926.304(d)].

When a new client comes to our office with a construction accident injury, one of the first things our office does is review the facts for violations of the OSHA requirements.  If a violation is found, a report is made to OSHA.

Upon receiving a report of a violation, OSHA will investigate, which usually includes a site visit to the location of the accident and/or an inspection of the employers shop.  If a violation is found as a result of the inspections, OSHA will issue a Citation and Notification of Penalty.

OSHA violations are classified as: 1. “Other Than Serious Violation”; 2. “Serious Violation”; and 3. “Willful Violation”.  A willful violation carries the largest fine; Other Than Serious carries the smallest fine.  Violations can also be categorized as a “Repeat Violation” or a “Failure To Abate Prior Violation”.

Once an employer receives a Citation and Notification of Penalty, the employer can either pay the fine, or partake in an informal conference in attempts to reduce the fine.  If the employer is unable to reduce the fine as a result of the informal conference, the employer can also contest the violations and penalty before the OSHA Board in Washington D.C.

The benefit of utilizing the OSHA process for prosecuting personal injury claims is that the OSHA paperwork regarding violations and citations can be obtained via a Freedom Of Information Law request, thereby providing an attorney with proof of the employers’ negligence and responsibility for the employees’ injuries.  Further, since they are issued by a Federal Governmental Agency responsible for employee safety, the OSHA violations carry significant weight and are thus a valuable tool for use in settlement negotiations and/or trial.

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Here is an example, a person is tragically hit by a vehicle while crossing the street and dies as a result.  Now let’s assume that person died without a will and had no living children, parents, siblings or grandparents.  When a person dies without a will, their estate will be divided pursuant to the New York EPTL, and must be administrated by an administrator who qualifies under New York Law.  In order to qualify under NY EPTL the administrator must be a distributee (must receive monetary benefit from the estate) and must be an immediate family member i.e. spouse, parent, grandparent, sibling, adult child (there are other technical ways for guardians to become administrator but that will not be covered in this article).  If no distributee qualifies to be an administrator, the Public Administrator of the County where the decedent resided must be petitioned to be the administrator of the estate.  The Public Administrator is a public authority who will administer the estate of decedents who do not have an administrator.  So, if the decedent died as a result of third party negligence then the Public Administrator would be the plaintiff in charge of the lawsuit.  The Public Administrator will also retain the lawyer who will handle the wrongful death case for the estate.  When the lawsuit is complete and if there is a monetary recovery the Public Administrator will then distribute the money to the proper distributees of the estate.

Under normal circumstances the administrator of an estate would be the living spouse or adult child of the decedent.  This makes sense because they would be the primary recipient of any monetary funds that would be derived from a wrongful death action.  New York Law mandates that only an immediate family member who is a direct distributee of the estate can be appointed administrator of the estate.  The law also mandates that only select close family members may be qualified to administrate the estate.  So, if you are the soul distributee but are only a cousin of the decedent, you may not administrate the estate.  Instead you must use the services of the Public Administrator.  The Public Administrator and their attorney are entitled to a percentage fee of the ultimate recovery for their services.  Sometimes this process can be confusing and it is important that you seek the guidance of an attorney who is well versed in this field.

Giampa Law has been handling wrongful death actions for New York residents for over thirty years.  The attorneys at Giampa Law are well versed in dealing with the Public Administrator and can also help a qualified family member become Administrator of their loved one’s estate.  If you believe that your loved one has wrongfully died as a result of a third party and believe their estate is entitled to compensation please contact Giampa Law.