Action: Premises liability/negligence
Amount: $5.206 million structured settlement providing compensation in addition to ongoing workers’ compensation benefits; workers’ compensation lien of $1.042 million fully satisfied for liquidated payment of $110,000
Injuries alleged: Fall trauma including T-10 spinal cord injury resulting in paraplegia and neurogenic bladder and bowel dysfunction, in addition to a mild traumatic brain injury
Case name: Withheld
Court/case no.: Buncombe County Superior Court/No. withheld
Jury and/or judge: N/A (mediated by Bill Brazil, Esq., of Asheville)
Date of settlement: Feb. 23, 2023
Attorneys for plaintiff: Jay Kerr of Jay Kerr Law, Asheville; Ervin Ball of Ball, Barden & Cury, Asheville
Attorney(s) for defense: Withheld
Were liability and damages contested: Liability was contested with allegations of contributory negligence
A 34-year-old male plaintiff sustained catastrophic injuries on Dec. 22, 2018, at a hotel construction site when he fell through the roof opening of a four-story HVAC riser shaft, through which ventilation ductwork would later be installed. The plaintiff sustained severe injuries, specifically including T-10 paraplegia due to permanent spinal cord injury, resulting in neurogenic bladder and bowel dysfunction, in addition to a mild traumatic brain injury.
The plaintiff was a laborer working for 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, they 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.
The 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, the plaintiff approached the subject piece of OSB that was covering the riser shaft opening. He proceeded to lift the OSB sheet while stepping forward to stand it on edge, but stepped into the riser shaft opening. The plaintiff testified that the OSB was not secured or marked, appeared to be weathered, and had bent nails protruding that caused him to assume it was debris and not acting as a cover to any hole or opening. The plaintiff further testified that he was not aware of the riser shaft opening on the roof.
The 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 the plaintiff’s fall based on contractual obligations related to OSHA regulations and other industry safety standards. Specifically, the 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. The 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 created a foreseeable diversion of his attention.
Plaintiff’s counsel developed convincing evidence of the employer’s negligence based on a failure to provide proper training to the plaintiff on hazard detection regarding debris removal around fall hazards. The plaintiff had neither previously worked on a commercial construction project nor been provided any relevant safety training.