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Worker buried alive, widow wins $3.85M verdict


A jury in Union County has awarded nearly $4 million in compensatory damages to the widow of a construction worker who was buried alive, prompting a confidential settlement in the case before the punitive damages stage of the trial began.



Charlotte lawyers Jon Moore of Brown, Moore & Associates and Sam McGee of Tin Fulton Walker & Owen represented the widow of Kirk Mitcham, who was killed after being lowered on the bucket of an excavator into a 12-foot-deep trench so he could locate a sewer pipe.

When Mitcham, a 46-year-old with a son, two granddaughters and two stepchildren, stepped off the bucket, a wall of the trench collapsed and crushed him.

Moore and McGee argued that the general contractor, Bonterra Builders, had knowingly hired an unqualified subcontractor to perform “inherently dangerous” work and left the job site when Mitcham and his fellow workers began digging the trench. Mitcham worked for the subcontractor, which specializes in grading work.

Bonterra’s attorneys at Baucom, Claytor, Benton, Morgan & Wood in Charlotte did not respond to interview requests. They contended that Bonterra had no reason to believe that the subcontractor would dig such a deep trench, according to Moore and McGee.

The federal Occupational Safety and Health Administration took no action against Bonterra, but the agency fined the grading subcontractor after finding that the trench was not dug correctly, Moore and McGee said.



“The big challenge was our recognition of the likelihood of a contributory negligence verdict,” Moore added. “So trying to get the jury to gross negligence was what we looked at as the primary challenge.”

And they succeeded in convincing jurors that Bonterra was grossly negligent. The jury awarded Mitcham’s widow $3.85 million in compensatory damages on March 7. Prior to trial, Bonterra had placed on the table an offer of judgment for $175,000. And before closing arguments on damages, Bonterra offered $1.5 million to settle, according to Moore and McGee.

“When people think about gross negligence they think about drunken driving or something like that,” McGee said. “But gross negligence is any time that you knowingly fail to fulfill a duty to consciously disregard someone else’s safety.”

Follow Phillip Bantz on Twitter @NCLWBantz



Amount: $3.85 million (case later settled for confidential amount)

Case name: Estate of James Kirk Mitcham v. BB Carolina Holdings, LLC

Court: Union County Superior Court

Case No.: 16-CVS-367

Judge: Jeff Carpenter

Date of verdict: March 7

Demand: $1.9 million at mediation

Highest offer: $175,000 offer of judgment before trial; $1.5 million before closing argument on damages

Most helpful experts: C. William Brewer, trenching and excavation specialist in Hilton Head, South Carolina; Mike Leonard, general contracting expert in Charlotte

Insurance carrier: Builders Mutual

Attorneys for plaintiff: John Moore of Brown, Moore & Associates in Charlotte and Sam McGee of Tin Fulton Walker & Owen in Charlotte

Attorneys for defendant: Brian Wolfe and Clay Campbell of Baucom, Claytor, Benton, Morgan & Wood in Charlotte

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