Our firm obtained a $5.206 million structured settlement for our client providing compensation in addition to ongoing workers’ compensation benefits, with the workers’ compensation lien of $1,042,000.00 being fully satisfied for the limited payment of $110,000.00. Firm co-counsel was Ervin Ball, Esq., of Ball, Barden & Cury, P.A., Asheville.
Our client was a 34 year old male laborer who sustained catastrophic injuries on 22 December 2018 at a hotel construction site in a fall through the roof opening of a four-story HVAC riser shaft, through which ventilation ductwork would later be installed. He sustained severe injuries, specifically including T-10 paraplegia due to permanent spinal cord injury, resulting in neurogenic bladder & bowel dysfunction, in addition to a mild traumatic brain injury (TBI).
Plaintiff was an employee of an independent contractor that was assisting the hotel framing crew. Members of the framing crew testified that after creating the roof opening over the riser shaft that it had secured a half-sheet of OSB (oriented strand board, which is similar to plywood) with nails over the opening to act as a cover. However, the crew did not apply any markings of any kind, including words, symbols or colors, to the OSB cover. There was competent evidence to support a finding that the OSB sheet subsequently had been pried up by an unknown person, but then placed back unsecured over the opening.
Plaintiff had been instructed by the framing crew supervisor to remove all wood scrap debris from the roof top to prepare the area for the roofing subcontractors. After collecting a considerable amount of wood debris on the roof, including partial scrap pieces of OSB, Plaintiff approached the subject piece of OSB that was covering the riser shaft opening. He proceeded to lift the OSB sheet while steeping forward to stand it on edge, but unfortunately stepped into the riser shaft opening. Plaintiff testified that the OSB was not secured or marked, appeared to be weathered, and it otherwise had bent nails protruding that caused him to assume it was debris and not acting as a cover to any hole or opening. Plaintiff further testified that he was not aware of the riser shaft opening on the roof.
Plaintiff alleged that the defendants (i.e., the primary and secondary framing subcontractors, the general contractor, the roofing subcontractors, and the HVAC subcontractor) retained joint-control over the hazardous condition and thus owed respective legal duties to prevent Plaintiff’s fall, based on contractual obligations related to OSHA regulations and other industry safety standards. Specifically, Plaintiff asserted that OSHA and other industry standards required the subject roof opening either to be barricaded or applied with a secured cover and an adequate color-coded warning. Plaintiff further alleged that he did not have prior knowledge of the hazard, which he asserted otherwise was not open and obvious, and that his work duties foreseeably diverted his attention.
Our firm developed convincing evidence of the employer’s negligence based on a failure to provide proper training to Plaintiff on hazard detection regarding debris removal around fall hazards. Plaintiff had neither previously worked on a commercial construction project nor been provided any relevant safety training.
Certain defendants alleged that they had no responsibility to address the subject hazard, and thus were not liable. Other defendants alleged that they had used reasonable care to address the hazard, but that Plaintiff knew or should have known about the fall hazard while performing his work and failed to protect himself, which would constitute contributorily negligent. A potential jury finding of contributory negligence would have barred Plaintiff from receiving any compensation for his damages, regardless of a finding of any defendant negligence.