Construction Fatality Claim Lawyer in Austin, TX Chapter 95, Control and Actual Knowledge

The statewide picture, from the state's own report

The Texas Department of Insurance's report on 2024 fatal occupational injuries counts 557 work-related fatalities in Texas at a rate of 3.9 per 100,000 full-time equivalent workers. Construction accounted for 128 of those incidents, roughly 23 percent of the total, and 125 private-sector construction deaths, about 24 percent of private-sector fatalities. Specialty trade contractors fell from 79 to 70. Construction and maintenance sites made up 15 percent of fatality locations. Falls, slips and trips accounted for 14 percent of all fatalities, and 34 percent of fatal falls involved a distance between 6 and 30 feet. Contact-with-object deaths were dominated by struck-by events at 56 percent.

Chapter 95 raises the bar against a property owner

Where the person who died worked for a contractor or subcontractor, section 95.002 applies the chapter to claims against a property owner, contractor or subcontractor arising from the condition or use of an improvement to real property that the contractor was constructing, repairing, renovating or modifying. Section 95.003 then bars owner liability, including liability for failing to provide a safe workplace, unless the owner exercised or retained some control over the manner in which the work was performed and had actual knowledge of the danger or condition and failed to adequately warn. The statute expressly excludes from control the mere right to order work to start or stop or to inspect progress and receive reports.

Control and actual knowledge are documentary questions

Because those two elements are conjunctive, a chapter 95 case is built from paper. Contract scope language, safety plan responsibilities, daily reports, toolbox talk records, inspection notes, correspondence about a hazard and prior incident reports are what establish retained control and prior awareness. Photographs and text messages sent by workers in the days before a death frequently carry more weight than the written safety manual. Those materials degrade quickly on an active project, which is why the request goes out early rather than after the site changes.

The I-35 corridor is a live example

TxDOT's Capital Express Central project is removing the I-35 upper decks, lowering the mainlanes downtown and rebuilding the Lady Bird Lake bridge, with the work described from US 290 East to SH 71 and Ben White Boulevard. Work of that character means multiple prime contractors, staged demolition, night operations and traffic control adjacent to the work face. The relevant question after a fatality is which entity controlled the specific operation at that hour, which is rarely the entity whose name appears on the project signage.

The comp system frequently sits in the middle

Where the employer carried coverage, section 408.001(a) of the Labor Code makes workers' compensation benefits the exclusive remedy of a legal beneficiary against that employer for the death. Subsection (b) preserves exemplary damages by a surviving spouse or heirs of the body where the death was caused by an intentional act or omission of the employer or by the employer's gross negligence, and subsection (c) borrows the section 41.001 definition of gross negligence. None of that bars claims against other entities on the site, which is where a general contractor, an equipment supplier or another trade may remain in play.

A non-subscribing employer loses standard defenses

Where the employer did not carry coverage, section 406.033 removes contributory negligence, assumption of the risk and the negligence of a fellow employee as defenses, while subsection (d) still requires the plaintiff to prove the employer's negligence. Subsection (c) leaves two defenses available: an act of the employee intended to bring about the injury, and intoxication. Subsection (e) voids any pre-injury waiver. The state estimates non-subscription is concentrated among smaller firms, with 31 percent of employers with one to four employees outside the system and 16 percent non-subscription in the mining, utilities and construction grouping.

Where this page ends

This page summarizes Texas construction-fatality law and published state fatality data. It is general information and not legal advice, and it makes no assessment of any project, contractor or death. Questions about a particular jobsite belong with the attorney who advertises on this site.