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Construction Injury Litigation

Construction sites are listed as one of the most dangerous places to work. With millions of accidents reported each year, injuries are often serious even catastrophic. This type of litigation is challenging and tends to involve sophisticated issues with multiple parties and complex relationships.

Marshall Dennehey's Construction Injury Practice Group understands these complex relationships and issues. With more than three decades of experience, our diverse team of attorneys regularly defends our clients in a wide range of personal injury matters arising out of the construction process. We provide an experienced defense unique to the law for owners, general contractors, constructions managers and subcontractors of every trade.

The depth of our experience is key to our legal defense in construction injury matters. Our professionals have considerable experience and understand the law surrounding this delicate area including workers' compensation, the statutory employer doctrine and peculiar risk doctrine. Our defense approach is aimed at the early identification of key issues and is predicated on developing the earliest possible defense strategies tailored to the individual case and client. Through the use of technology and aggressive investigation, we are able to assess liability and damages early on in the case so, together with the client and insurer; we can effectively resolve the case.

Our unique strategy and team approach consists of experienced partners, associates and paralegals capable of handling the basic, as well as the highly sophisticated and complex, construction litigation matters throughout Pennsylvania, New Jersey, Delaware, Ohio, Florida, New York and Connecticut.

We look forward to your inquiries and remain at your disposal for presentations or seminars which your company may desire.

Results

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Consolidated Cases Successfully Transferred to Correct Venue

We successfully transferred two consolidated cases involving alleged falls by construction workers from Philadelphia to Cumberland County. Our clients were located in Lancaster County, and the only codefendant was located in Philadelphia County. We filed preliminary objections as to venue, arguing that the codefendant was a “phantom” defendant named to obtain venue in Philadelphia County. The court was convinced by our arguments. This ruling cuts against the current trend of giving broad deference to plaintiffs on venue issues.

Obtained Positive Outcome in a Construction Site-Related Personal Injury Case

We secured a positive outcome for our client in a construction site-related personal injury case in New Jersey. After a month of trial, we successfully placed the entirety of the plaintiff’s $4.2 million jury verdict against the remaining co-defendant. We also succeeded in placing all of our client’s costs and attorney’s fees on the co-defendant. In total, the judgment against the co-defendant was in excess of $7 million.

Thought Leadership

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Danger: Construction Site - Avoiding Liability and Workers' Compensation Exposure in the Construction Industry

June 20, 2025

Construction sites are listed among the most dangerous places to work. With millions of accidents reported each year, injuries are often serious - and sometimes catastrophic. Such injuries often give rise to liability claims and workers' compensation claims. These claims can be challenging to defend, and tend to involve sophisticated issues with multiple parties and complex relationships. The avoidance of such claims requires proactive risk management strategies.

Defense Digest

Undefined Parties and the Statutory Employer Defense

December 1, 2024

Key Points:  A recent Pennsylvania Superior Court decision highlights the importance of clarity in contracts for employers asserting a statutory employer defense.  Employers will not be able to successfully assert the statutory employer defense when there is ambiguity about contracting parties. Contractors should ensure they are contracted with the owner of the property to protect against liability from a workplace accident. In litigation involving workplace accidents, a common defense raised by a contractor is the statutory employer defense under the Pennsylvania’s Workers’ Compensation Act. The Act requires an employer to pay workers’ compensation benefits to employees injured in the course of their employment regardless of the employer’s own negligence. In return for assuming secondary liability for the payment of workers’ compensation benefits, a statutory employer is immune from suit brought by an employee for a work-related injury.  A recent Pennsylvania Superior Court case highlights issues that may arise when a subcontractor’s agreement for a construction project is not properly executed. In Feldman v. CP Acquisitions 25, L.P., 2024 WL 4156993 (Pa. Super. Sept. 12, 2024), the Superior Court agreed with the trial court’s decision that a contractor could not avoid liability using the statutory employer defense when it is unclear who the contracting parties are in a subcontracting agreement. In this case the plaintiff, Brian Feldman, suffered grievous injuries from a workplace electrocution accident during a tree removal project during the construction of an apartment building. Cross Properties engaged Altino Concrete Construction as a contractor to build an apartment building on a property they had recently acquired. Near the end of construction on this project, Cross Properties reached out to Vito Braccia, the owner of Altino Concrete Solutions and Braccia Construction, LLC (VBC), to remove trees on an adjacent property owned by the Southeastern Pennsylvania Transportation Authority (SEPTA). Mr. Braccia then subcontracted with Colonial Tree Service, Inc., for the tree removal project. Mr. Braccia did not carry out any safety planning before the tree removal project, even though he was aware of a high-voltage power line on SEPTA’s property. Additionally, he failed to reach out to SEPTA for permission to enter the property or to have the power lines de-energized during the tree removal project. On the day of the project, Mr. Feldman was electrocuted when a current arced from the power line and through a crane hoist. As a result, Mr. Feldman suffered extensive and severe burns, and spent the next six weeks recovering in a hospital burn unit. Mr. Feldman filed and prevailed in a personal injury suit against the general contractor, developer, and related entities.  VBC, the contractor for the tree removal, appealed the trial court’s decision in favor of Mr. Feldman. One argument raised by VBC on appeal was that, as the plaintiff’s statutory employer under section 302(b) of the Workers’ Compensation Act, they were immune from a personal injury suit brought by Mr. Feldman.  The longstanding test to determine whether a person or entity qualifies as a statutory employer under this section was set forth by the Pennsylvania Supreme Court in McDonald v. Levinson Steel Co., 153 A. 424 (Pa. 1930). The McDonald test requires an employer satisfy each of the following elements to be considered a statutory employer under section 302(b): an employer who is under contract with an owner or one in the position of an owner; the premises occupied by or under the control of such employer;  a subcontract made by such employer;  part of the employer’s regular business entrusted [sic] to such subcontractor; and  an employee of such subcontractor. It was undisputed that VBC was the contractor for the tree removal project. However, the respective representatives from Cross Properties and Colonial testified at trial that they believed they had an oral agreement with Altino Concrete Construction for the tree removal project, not VBC. As a result, the court determined there was no mutual understanding between the parties regarding who they were contracting with, which is essential for any contract. Therefore, the court held that VBC could not meet the first element of the McDonald test. The court went further and noted that, even if a valid contract existed between Cross Properties and VBC, it would not help their case. They would still be unable to prove they had a contract with the property owner or someone in a similar position. This is because SEPTA was the actual owner of the property in question, not Cross Properties. As VBC never attempted to reach an agreement with SEPTA for the tree removal, they could not establish they were a statutory employer under Section 302(b).  In conclusion, Feldman v. CP Acquisitions 25, L.P. underscores the importance of clearly defining contractual relationships in construction projects. The court’s ruling emphasizes that a lack of mutual understanding among contracting parties prevents the successful use of the statutory employer defense under the Pennsylvania’s Workers’ Compensation Act.  Contractors should ensure that subcontracting agreements clearly identify all parties involved and confirm ownership of the work site. By doing so, they can better protect themselves against liability in workplace accidents and minimize potential legal disputes. *Osama is an associate and a member of our Casualty Department. He works in our Philadelphia, Pennsylvania, office.    Defense Digest, Vol. 30, No. 4, December 2024, is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2024 Marshall Dennehey. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.

News

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Firm Highlights

Complete Victory Obtained in a Workers’ Compensation Matter

Result

Complete Victory Obtained in a Workers’ Compensation Matter

Thought Leadership

Two Tracks, No Preclusion: Ohio Supreme Court Preserves Separate Damages Claims After Chapter 2506 Appeals

The Supreme Court of Ohio has clarified that an administrative appeal under Ohio Revised Code Chapter 2506 does not bar a separate action for damages and declaratory relief that could not have been pursued in the administrative appeal. The Ohio Supreme Court considered Sheetz, Inc. v. Centerville (2026-Ohio-3531) as a result of a certified question from the Southern District of Ohio. The question was whether Sheetz, the gas station/convenience store brand, was barred from seeking damages in a separate action since damages were not sought in their administrative appeal. Ultimately, the Ohio Supreme Court ruled that res judicata does not bar a separate action for damages after ruling on an administrative appeal because R.C. Chapter 2506 is limited to judicial review and cannot grant affirmative relief. The case arose after Centerville’s city council rejected a site plan proposed by Sheetz, Inc. that had received unanimous approval from the City’s planning commission. Sheetz filed an administrative appeal pursuant to R.C. 2506 in the Montgomery County Court of Common Pleas, and two months later filed a complaint for damages and declaratory relief under 42 USC § 1983 as a takings action with the city, city council, and other objectors as improper takings and a violation of due process, as well as interference with business and contractual relationship. The city and city council removed the § 1983 action for damages to federal court. Montgomery County Court of Common Pleas reversed the city council’s denial, and allowed the Sheetz project to move forward. Upon that ruling, the federal court issued a show-cause order questioning whether the § 1983 action was barred by the doctrine of res judicata via claim preclusion (which includes all theories of recovery).  Sheetz argued that Ohio courts of common pleas do not have authority to award damages or declaratory relief as party of the R.C. Ch. 2506 appeal, therefore res judicata could not be triggered to apply to the § 1983 action. Additionally, Sheetz moved to certify the issue to the Ohio Supreme Court, citing differing results between the second and sixth districts on this same issue. Centerville approached the question, not from a claim preclusion standpoint, but from the holding in Grava v. Parkman, Twp which states that a final judgment rendered on the merits bars all subsequent action based on the same transaction or occurrence.  In yet another approach, an objector argued that claim preclusion was satisfied because Sheetz could have raised its damages claims in the administrative appeal – Sheetz disagrees. In their analysis, the Supreme Court of Ohio broke down the elements of a claim preclusion analysis: 1) a prior final, valid decision on the merits by a court of competent jurisdiction; (2) a second action involving the same parties, or their privies, as the first; (3) a second action raising claims that were or could have been litigated in the first action; and (4) a second action arising out of the transaction or occurrence that was the subject matter of the previous action. The Court held that R.C. Ch. 2506 does not permit a party to argue damages as R.C. Ch. 2506 limits the common pleas jurisdiction as if it were sitting on appeal, and therefore can only affirm, reverse, vacate, or modify the appealed order, or can remand the case to the administrative body. Further, the Court held that Grava’s conclusion that a final judgment precludes additional litigation for different relief is inapplicable under this fact pattern because it was meant only to apply to those matters in which the plaintiff brings the exact same case twice, but for new relief. The Court found Grava was inapplicable because Sheetz could have requested damages or declaratory relief in the R.C. 2506 appeal. Therefore, Grava would be nothing more than dicta if it even did apply. Going further, the Ohio Supreme Court disavowed Sixth Circuit precedent which, in reliance on Grava and other district court decisions, permitted an owner to seeking relief under 42 U.S.C. § 1983 alongside an administrative appeal. See Moore v Hiram Twp., 988 F.3d 353 (6th Cir.2021). The Ohio Supreme Court found that the Sixth Circuit had disregarded a critical decision in Community Concerned Citizens, Inc. v. Union Twp. Bd. of Zoning Appeals, 1993-Ohio-115, which clearly held that a R.C. Ch. 2506 appeal cannot be combined with a complaint seeking other claims for relief. Id. at ¶ 11. To that end, the Ohio Supreme Court has determined that the decisions Moore relied on (outside of Grava) are no longer good law, and that Moore was wrongly decided. The decision draws a clear procedural boundary: Chapter 2506 provides judicial review of an administrative decision, not a forum for independent claims seeking affirmative relief. Although Grava may place claims arising from a single transaction within the potential scope of claim preclusion, those claims are not barred unless the complete claim-preclusion test is satisfied. Because Sheetz could not have pursued damages or declaratory relief in its Chapter 2506 appeal, the separate action was not precluded. The remaining question for practitioners looking to apply or defend against this exception is when does the statute of limitations begin to run on damages and declaratory relief claims related to an administrative decision on appeal? A takings action in federal court has a 2-year statute of limitations, or as a state claim, 4 years (like the other tortious claims raised therein). Correlating this case with others, an administrative appeal will not likely toll the statute of limitations on claims based on a final decision by a municipal authority. Therefore, practitioners should look for these cases to be brought simultaneously.

Thought Leadership

The Search-Incident-to-Arrest Doctrine Does Not License Strip Searches

In Beatty v. Gardner, No. 25-2860 (3d Cir. Sept. 16, 2026), Kyle Beatty sued police officers Clinton Gardner and Calvin Irvin under 42 U.S.C. § 1983 after they stopped, arrested, and searched him three times during a drug investigation in Williamsport, Pennsylvania. The officers initially smelled marijuana coming from the car in which Beatty was sitting and observed marijuana residue, giving them probable cause to arrest him. Beatty consented to the first pat-down, and the second search was conducted incident to his lawful arrest; neither search uncovered weapons or contraband. The officers then transported Beatty to the police station solely to strip-search him, but the strip search also revealed nothing. The District Court granted the officers summary judgment, concluding that the initial stop, arrest, and first two searches were reasonable and that qualified immunity protected the officers from liability for the strip search. The Third Circuit affirmed, but held that the strip search itself violated the Fourth Amendment. The court concluded that the search-incident-to-arrest doctrine does not automatically permit officers to strip-search an arrestee outside the jail or prison setting. Because strip searches are highly intrusive and the traditional justifications for searches incident to arrest (officer safety and preservation of evidence) did not justify the search of Beatty, the officers generally needed either the arrestee’s consent, exigent circumstances, or a warrant supported by probable cause to believe that a search beneath the clothing would reveal weapons, contraband, or evidence. Here, the officers had none of those justifications. Nevertheless, the court held that qualified immunity barred damages liability because, at the time of the search, the right against a warrantless strip search of an arrestee outside the institutional setting was not clearly established by Supreme Court or Third Circuit precedent. The court likewise upheld qualified immunity on Beatty’s First Amendment retaliation claim and affirmed summary judgment for the officers.

business meeting photo

Result

Summary Judgment Obtained in Insurance Coverage Case

Four Marshall Dennehey Attorneys Selected 2026 “Top Lawyers” by Delaware Today Magazine

News

Four Marshall Dennehey Attorneys Selected 2026 “Top Lawyers” by Delaware Today Magazine

Marshall Dennehey Announces 2027 Pennsylvania Super Lawyers and Rising Stars Honorees

News

Marshall Dennehey Announces 2027 Pennsylvania Super Lawyers and Rising Stars Honorees

Jeremy J. Zacharias Elected to the Executive Committee of the Professional Liability Underwriting Society

News

Jeremy J. Zacharias Elected to the Executive Committee of the Professional Liability Underwriting Society

Thought Leadership

Pennsylvania Supreme Court to Review Whether Legal Malpractice Claims May Be Recast as Breach of Contract Claims

The Pennsylvania Supreme Court recently granted allowance of appeal to consider whether a plaintiff may pursue a breach of contract claim against an attorney based on allegations that the attorney failed to provide competent legal services. The issue is significant in professional liability litigation because it concerns whether a plaintiff may avoid the statute of limitations applicable to professional negligence claims by characterizing the alleged misconduct as a breach of contract. Antoine Poteat retained attorneys Gary Asteak and Nino V. Tinari to represent him in a criminal matter. After his conviction was subsequently overturned through a Post Conviction Relief Act proceeding, Poteat filed suit against his former attorneys alleging that they breached their retainer agreements by failing to provide competent legal services. The attorneys argued that the claims sounded in professional negligence, rather than breach of contract, and were therefore time-barred. The trial court dismissed Poteat’s complaint, but the Superior Court, sitting en banc, reversed. The Superior Court held that the gist-of-the-action doctrine did not bar Poteat’s breach of contract claim because the alleged failure to provide competent legal services could constitute a breach of the parties’ agreement. The Court further held that a legal-services agreement contains an implied duty requiring an attorney to provide competent legal services, even where the agreement does not contain an express provision requiring such services. The Pennsylvania Supreme Court granted review in July 2026 and will consider whether the Superior Court’s decision conflicts with Pennsylvania precedent distinguishing contract and tort claims, including Bruno v. Erie Insurance Co. The Supreme Court will also address whether a plaintiff may maintain a breach of contract claim based on an implied duty to provide competent legal services without identifying a specific contractual provision that was breached. The Supreme Court’s decision could have significant implications for professional liability litigation in Pennsylvania, particularly where plaintiffs seek to characterize claims arising from alleged professional negligence as contractual claims.

Event

CLM 2026 Focus Conference

Allison joins three insurance industry leaders to discuss how cyber coverage disputes, the growing impact of social inflation on bodily injury claim valuation, and the use of artificial intelligence are reshaping the bad faith landscape. The panel will examine emerging sources of extra-contractual exposure, including evolving cyber insurance coverage issues and the challenges of accurately valuing bodily injury claims. Practical approaches to claim evaluation using AI, along with defense strategies designed to help prevent or successfully defend against bad faith litigation, will also be addressed. 

Defense Victory Obtained in Workers’ Compensation Case

Result

Defense Victory Obtained in Workers’ Compensation Case