Hayward Construction Worker Died in Preventable Accident: Will His Family Be Entitled to Wrongful Death Benefits?
A Hayward carpenter died on Saturday in what most assuredly was a tragic and preventable accident. Raul Zapata, was a thirty-nine year old carpenter who was married and had three children. When he went to work on Saturday, it appears he was unaware that the City of Milpitas building department had issued a stop order declaring his work site unsafe.
Mr. Zapata was employed as a carpenter working on building a luxury home in a gated community in Milpitas. At the time of his death, he was working inside a hole on the site for a 5800 square foot home. Suddenly, tons of dirt rained over him burying him alive. His nephews who were co-workers saw their uncle buried before their very eyes.
City building inspectors stated that three days before the cave-in, they issued a stop work order because the open trench where he had been working needed to be shored up. There was no system in place to keep the trench from collapsing, especially after recent rains. According to the workers, they were not told of the order by their employer.
When someone is killed while working, the legal question arises whether someone's family has the right to pursue a wrongful death action or whether they are left only with the benefits they would receive under workers compensation laws.
Workers compensation laws provide that if someone dies during the course and scope of their employment, the employer is automatically liable for workers compensation benefits regardless of who's fault the accident is. While the law provides immediate compensation without fault, there are limitations. The family is not entitled to any monies for the loss of the worker's love, companionship, and value to the family. Usually, the benefits paid out do not fully compensate for the worker's loss of future earnings either, which can cause the family extreme financial hardship.
If however, the facts show that someone other than the employer of the worker was negligent and was a cause of the accident, then the family can bring a civil suit (in addition to receiving workers compensation benefits) against the negligent person. These are called "third party" lawsuits. If successful, the family can recover fully for all loss of future income in addition to the more serious loss to the family of the decedent's love, care, companionship, and support.
In Mr. Zapata's case, there will be an investigation into who knew about the stop order and who had the authority and responsibility to make sure the order was obeyed. If a third party, such as an owner or general contractor, was negligent, his wife and three children may well have a legitimate claim for a wrongful death lawsuit against them.
As a Hayward personal injury lawyer, I know that construction accidents can be complicated both in terms of how the accidents occur and in terms of the multiplicity of parties that may be responsible. When someone is involved in construction accident, it is therefore extremely important that the worker, or in the case of his death, his family, contact a qualified personal injury attorney to thoroughly investigate the accident and determine whether the person has any rights beyond our workers compensation laws.
Resources:
No construction to be done for months on Milpitas home where death occurred, San Jose Mercury News, February 1, 2012
Construction work has been proceeding to put in a new bore at the Caldecott Tunnel. Today an Oakland construction worker was injured when a part of the façade of the new bore fell injuring the worker. The worker was struck by falling concrete. The incident happened around 7 a.m. and the worker was taken to the hospital with non-life threatening injuries. 
