By Marcell Owens, Owner, McCray Law Firm, PLLC · Houston, Texas
Who is liable for a construction accident in Texas is almost never a question with one answer, and the reason is structural. On a jobsite there is an owner, a general contractor, a chain of subcontractors, equipment suppliers, and often a design professional. Responsibility is distributed among them by contract as much as by conduct.
Liability for a construction accident means legal responsibility for the conditions or the conduct that caused the injury. On a jobsite that responsibility is layered: someone controlled the site, someone controlled the specific work, someone supplied the equipment, and someone was designated to inspect for hazards.
The most consequential fact in a construction case is not who was careless. It is which careless party is your employer and which is a third party.
At McCray Law Firm we build the party map before we value anything, because a claim pointed at the wrong company goes nowhere no matter how strong the facts are.
Why the employer question comes first
Texas workers’ compensation is built on a trade. Where an employer carries coverage, statutory benefits are provided without proof of fault, and Chapter 408 of the Texas Labor Code addresses the effect of that coverage on other remedies. How far that reaches in any specific case is a question for a lawyer with the records rather than a rule this article can state.
The practical consequence is what drives everything. A company that is not your employer is a third party, and a third party can be sued in negligence. So the value of a construction case usually depends on how many genuinely responsible third parties exist and can be identified.
Two provisions of the Texas Labor Code decide that boundary, and both turn on documents rather than on what anyone remembers.
Coverage is elective in Texas
Under Section 406.002 of the Texas Labor Code, workers’ compensation coverage is elective for private employers. A construction company can simply choose not to subscribe.
An employer that opts out is a non-subscriber, and it is in a considerably worse position than most injured workers realize. Under Section 406.033(a), in an action by an employee for a work-related injury, a non-subscribing employer may not use the defenses of contributory negligence, assumed risk of injury, or negligence of a fellow employee.
Three standard arguments, unavailable. The employer cannot say you were careless, cannot say you accepted the danger of the trade, and cannot blame a coworker.
There is a burden attached. Section 406.033(d) provides that the plaintiff must prove negligence of the employer, or of an agent or servant of the employer acting within the general scope of that agent’s or servant’s employment. Fault still has to be proven — against an opponent stripped of three defenses.
Do not assume you know whether your employer subscribes. Workers routinely believe they are covered because a form was completed or a clinic visit was arranged. It is a documentary question and it should be answered from records.
A written agreement can create an employer
Under Section 406.123 of the Texas Labor Code, when a general contractor and a subcontractor agree in writing that the general contractor will provide workers’ compensation coverage, the general contractor becomes the employer of the subcontractor and the subcontractor’s employees for purposes of Texas workers’ compensation law.
On a construction site with three or four tiers of subcontracting, that provision can reshape the entire case. A general contractor who looks like a well-insured third party may, by operation of a contract signed before you arrived, stand as your statutory employer instead.
A promising third-party claim can change character because of a document you never signed.
This is why the first records we request in a construction case are contracts, not medical records. We work through the mechanics in detail in our guide to contractor or employee status in a Texas plant injury claim, which covers the same Labor Code provisions in an industrial setting.
The parties who can be liable for a construction accident in Texas
Once employer status is mapped, everyone else is a third party. This is where construction cases are built.
The general contractor
Runs the work, coordinates the trades, and typically controls site-wide safety. A general contractor can be a third party — or, under Section 406.123, your statutory employer. Which one depends on the written agreement, and there is no way to know without reading it.
Where the general contractor is a third party, the theory usually centers on control: control of the site, of the sequence of work, of the safety program, or of the specific hazard that injured you.
The site or property owner
An owner that is not your employer can be a defendant on premises grounds where it controlled a dangerous condition, and in some circumstances where it retained control over how the work was performed. What builds it: the contracts defining who controlled what, the owner’s own safety requirements and who enforced them, and the daily records showing who was directing the work.
Other subcontractors on the site
The trade whose crew dropped the load, left the hole uncovered, energized the circuit, removed the guardrail, or backed the equipment into you had no employment relationship with you. That makes them a third party in the ordinary sense, and on a busy site this is frequently where the strongest claim sits.
Nobody hands over a complete roster. It comes from badge and access records, daily reports, sign-in sheets, permits, and toolbox talk records.
Equipment manufacturers, suppliers, and lessors
A lift, hoist, crane, ladder, scaffold component, power tool, or guard that failed can support a product liability claim entirely outside the workers’ compensation framework. Rental and leasing companies can also carry exposure for the condition of what they supplied.
This is time-sensitive in a way nothing else is. The failed component is the evidence, and it gets repaired, returned to the rental yard, or scrapped. A preservation demand identifying the specific item, by model and serial number where available, should go out immediately.
Design professionals
Where a structural, temporary works, or shoring design contributed, an engineer or architect may be implicated. This is fact-specific and document-driven.
The federal standards that turn conduct into a measurable breach
Beyond identifying parties, a case needs a theory. OSHA’s construction standards supply specific obligations against which conduct can be examined — and, more usefully, obligations that generate records.
Someone was designated to inspect. Under 29 CFR 1926.20(b)(2), competent persons designated by the employers must make frequent and regular inspections of the job sites, materials, and equipment. Read that carefully, because it is the most underused fact in this vertical. It means a person was designated. That person has a name. And frequent, regular inspections leave a trail.
So a construction case has a question available that most injury cases do not: who was the designated competent person, and what did their inspections say about this hazard before it hurt someone?
A safety program was required. Under 1926.20(b)(1), the employer must initiate and maintain such programs as may be necessary to comply with the standards.
Unsafe equipment was prohibited outright. Under 1926.20(b)(3), the use of machinery or equipment that does not comply is prohibited, and such equipment must be tagged or locked out as unsafe or physically removed from its place of operation. A documented defect followed by continued use is a specific, examinable decision.
Only qualified people were allowed to operate. Under 1926.20(b)(4), the employer shall permit only those employees qualified by training or experience to operate equipment and machinery. That points at training and qualification records.
Whether any particular standard applied to the specific work at issue is a technical question requiring the records. And whether an OSHA citation or investigative finding is admissible in a civil case is a separate legal question this article does not answer — an OSHA citation is a regulatory enforcement action, while civil liability is decided under state negligence law.
The specific hazard standards matter too, and we cover the two most consequential in their own guides: the fall protection threshold in our guide to a construction fall accident in Texas, and the excavation requirements in our guide to a trench collapse accident in Texas.
What does not decide who is liable
Workers reach conclusions from things that carry no legal weight, and those conclusions cost them months.
The name on your paycheck. A starting point, not an answer, because Section 406.123 can put a different company in the employer position.
Being called a subcontractor or a 1099. A label in a document is a characterization the other side will argue. It is not a finding.
Whose logo is on the trailer, the gate, or the sign. Site branding organizes a project. It does not allocate legal responsibility.
Who told you what to do that morning. Direction on a given day is relevant evidence, not a determination. Construction routinely involves taking direction from people who do not employ you.
The safety orientation you attended. Sitting through a general contractor’s orientation does not make it your employer, and does not make it a stranger either.
What someone on site told you about your options. Superintendents, safety personnel, and administrators are not giving legal advice, and they are frequently wrong in good faith.
Status is established with contracts and records. Nothing on that list is a contract.
Why finding every party matters more than any single fact
Insurance. A strong claim against a thinly capitalized subcontractor can produce a judgment that is hard to collect. Each additional responsible party brings its own coverage, and on a construction site that stack is often the difference between a recovery and a piece of paper.
Comparative fault. Texas applies a proportionate responsibility framework in Chapter 33 of the Texas Civil Practice and Remedies Code, under which responsibility is allocated among the parties and a claimant’s own share can reduce or, past a threshold, bar recovery. The specific operation of that framework should be confirmed against the current statute for any particular case. What it means practically: leaving a responsible company out of the case does not make its share disappear. It makes it someone else’s argument.
Identify everyone, then decide.
What we do in the first weeks
- We request the contracts first — owner to general contractor, general contractor to your employer, every subcontract in the chain, certificates of insurance, and any owner-controlled or contractor-controlled insurance program documents.
- We confirm coverage status from records, not from what anyone says.
- We identify the designated competent person under 1926.20(b)(2) and demand the inspection records.
- We build a complete roster of every company on site from badge and access records, daily reports, permits, and sign-in sheets.
- We preserve the failed equipment specifically, by model and serial number, before it is repaired, returned, or scrapped.
- We demand training and qualification records for anyone who operated the equipment involved.
- We take over communication with every insurer, administrator, and safety department.
- We retain the right experts — construction safety, structural or mechanical engineering, and origin-and-cause where equipment failed.
Your job is to get treatment and keep what you already have. Our job is to find out who you were actually working for, in the only sense the law cares about.
Be careful what you sign
Section 406.033(f) of the Texas Labor Code sets conditions for a post-injury waiver of a cause of action to be valid. The employee must enter it voluntarily and with knowledge of its effect, it must come at least 10 business days after the date the injury was reported, the employee must have received a medical evaluation from a non-emergency care doctor, and the waiver must be in a conspicuous writing.
Those are conditions, not an indication that waivers are routine. A document presented in the first days after an injury may not satisfy the statute at all.
Do not sign in the first week.
If the accident was fatal
A construction fatality activates Texas wrongful death and survival claims alongside any workers’ compensation question, and the beneficiary list is shorter than families expect. Under Section 71.004 of the Texas Civil Practice and Remedies Code, a wrongful death claim is for the exclusive benefit of the surviving spouse, children, and parents — a closed class that does not include siblings or grandparents. The estate separately holds a survival action under Section 71.021.
There is also a reporting fact worth knowing immediately: OSHA requires an employer to report a work-related fatality within 8 hours. We cover the full structure in our guide to construction accident wrongful death in Texas.
Key takeaways
- Liability is usually shared. Owner, general contractor, subcontractors, suppliers, and design professionals can each have a role, and each carries its own insurance.
- Employer or third party is the threshold question. A third party can be sued in negligence; a covered employer is a different analysis.
- Coverage is elective under Section 406.002, and a non-subscriber loses three defenses under Section 406.033(a) while the plaintiff still bears the burden under 406.033(d).
- Section 406.123 can create an employer by contract. A written agreement making the general contractor the provider of coverage makes it the employer of the subcontractor’s employees for those purposes.
- Someone was designated to inspect. Under 29 CFR 1926.20(b)(2), competent persons designated by the employer must make frequent and regular inspections — which means a name and a record.
- Unsafe equipment was prohibited. Under 1926.20(b)(3) it had to be tagged, locked out, or removed from operation.
- Find every party before valuing anything. Chapter 33 allocates responsibility, so an absent defendant’s share becomes someone’s argument.
Frequently Asked Questions
Can I sue the general contractor if I work for a subcontractor?
Sometimes, and that is often where the strongest claim lives. But Section 406.123 of the Texas Labor Code provides that where a general contractor and a subcontractor agree in writing that the general contractor provides workers’ compensation coverage, the general contractor becomes the employer of the subcontractor’s employees for those purposes. Whether that applies to you depends on the actual written agreements on the project, which is why the contracts are requested first.
Can I sue the property owner?
An owner that is not your employer is a third party and can be pursued where it controlled a dangerous condition or retained control over how the work was performed. What supports it is documentary: the contracts defining control, the owner’s safety requirements and who enforced them, and the daily records of who was directing the work.
They classified me as a 1099 independent contractor. Do I still have a claim?
A classification on paperwork is not the end of the analysis, and it does not automatically resolve every legal question about your position. What matters is the actual arrangement and the written agreements governing the project. This is fact-specific, and it is one of the main reasons to get the contracts early rather than accept the label.
What if my employer does not have workers’ compensation?
That frequently improves your position on defenses. Under Section 406.033(a), a non-subscribing employer cannot use contributory negligence, assumed risk of injury, or negligence of a fellow employee. You still have to prove the employer’s negligence under Section 406.033(d), but you prove it against an opponent without those three arguments. Confirm your employer’s status from records rather than assumption.
Does an OSHA citation mean the company is liable?
Not automatically, and the two questions are separate. An OSHA citation is a regulatory enforcement action; civil liability is decided under state negligence law. Whether a citation or investigative finding is admissible in a civil case is itself a legal question that depends on the circumstances. What is reliably useful is the underlying record — inspection reports, training records, equipment files — which is reached through discovery.
Who is the “competent person” and why does it matter?
Under 29 CFR 1926.20(b)(2), competent persons designated by the employer must make frequent and regular inspections of the job sites, materials, and equipment. It matters because it means someone was designated for that role, that person can be identified, and those inspections should have produced records. Whether the hazard that injured you appears in those records — or should have — is one of the more powerful questions in a construction case.
They offered me a check and papers to sign. Should I?
Have them reviewed first. Section 406.033(f) sets conditions for a valid post-injury waiver, including that it come at least 10 business days after the injury was reported, follow a medical evaluation by a non-emergency care doctor, and be in a conspicuous writing entered voluntarily and with knowledge of its effect. A document offered quickly may not meet those conditions.
How long do I have to bring a construction accident claim in Texas?
Personal injury claims in Texas are generally subject to a two-year period under Section 16.003(a) of the Texas Civil Practice and Remedies Code, and a death action generally within two years of the date of death under Section 16.003(b). Workers’ compensation deadlines are separate and can be shorter. The practical window closes earlier, because equipment gets repaired and crews move to other projects. Confirm your dates with a licensed attorney.
This article is for informational purposes only and does not constitute legal advice, and reading it does not create an attorney-client relationship. Deadlines and outcomes depend on the specific facts of each case, and questions of employment status, coverage, and the application of federal safety standards require review of the actual contracts and records. McCray Law Firm, PLLC is licensed to practice in Texas and is admitted in the U.S. District Court for the Southern District of Texas. If you believe you may have a claim, speak with a licensed attorney about your situation before any deadline passes.
About the author. Marcell Owens is the owner of McCray Law Firm, PLLC in Houston, Texas. He earned his J.D. cum laude from Texas Southern University’s Thurgood Marshall School of Law and has been licensed to practice in Texas since 2015. He is admitted in Texas and in the U.S. District Court for the Southern District of Texas, and was included in the Top 40 Under 40 National Black Trial Lawyers. He works with a team of attorneys handling personal injury and wrongful death matters across Texas.
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McCray Law Firm is committed to answering your questions about Personal Injury and Premises Liability law issues in Texas. We offer a free consultation and we will gladly discuss your case with you at your convenience. Contact us today to schedule an appointment, or read more about how we handle construction accident cases.
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