In a victory for workers who incur personal injury in construction site accidents, Lea Ann Sterling, with co-counsels Wendy Bailey and Dean Robb, recently secured settlements totaling $317,500 for a worksite-injured carpenter.
On February 1, 2005, Joseph LaPan, a framing carpenter, was helping to construct the BayView Condominiums in Suttons Bay. He walked across a section of the building site and stepped on a two-inch piece of styrofoam that had been left on top of and concealing an opening for a future stairwell. He immediately broke through the soft foam and fell 17 feet onto a water-covered concrete floor.
In the workplace accident, Mr. LaPan sustained severe, permanent injuries which, at age 51, put an end to his life-long career as a carpenter. It started a disability journey that has led him through nine surgeries for spinal, disk, arm and wrist trauma, hundreds of doctor and physical therapy visits, and thousands of hours of medical treatment.
On the day before the accident, cement contractor Americrete poured an upper level cement floor cap. Due to cold weather, the lower level needed to be heated for the cement to set. To keep the lower level heated, the openings for the stairwells had to be covered. Americrete covered the stairwell holes with the two-inch pieces of Styrofoam, which they found laying unused at the site. The stairwell openings were thus hidden, unsealed, and left without barriers or warning signs.
Ms. Sterling persuasively argued to a case-evaluation panel that the defendants in the case, including the general building contractor for BayView Condominiums, the development company, the framing subcontractor, and Americrete, the cement subcontractor, failed and were negligent in their duties to ensure a safe workplace. The panel’s case evaluation against the four defendants was for a total of $600,000. The building and development companies each accepted their shares of the evaluation award, in the sum of $300,000. The framing contractor initially rejected the case evaluation, then agreed to settle for $17,500.
The case went to trial against the remaining defendant, the concrete subcontractor, who declined to accept the mediator evaluation. At trial, the Leelanau County jury found “no cause of action” against Americrete, on the basis that leaving an unsecured, unmarked hidden trap at the construction site was within the scope of duties they were hired to perform. Somewhat astonishingly, the jury affirmed the concept that Americrete was doing the job they were hired to do, and hence no “separate and distinct duty” was created. The jury reached this verdict even though there was no written contract between Americrete and the construction contractors, but only a purchase order that broadly called for Americrete to pour the cap and “provide all material and labor and remove all trash/debris” for concrete work at the site.
The trial portion of this case demonstrates some of the significant legal hurdles injured construction workers face if they seek compensation. Recent appellate court rulings in construction and personal injury law in Michigan, driven by conservative courts which favor business owners and insurance companies over workers and victims, have made it much more difficult for valid personal injury claims to achieve their just reward.
The ominous implications of the “no cause of action” jury finding are that subcontractors working on a jobsite bear no responsibility to co-subcontractors also working on the site to adhere to industry safety standards, nor indeed to take any measures whatsoever to maintain a safe, hazard-free workplace. If their actions lead to injuries of construction workers on the site, they bear no liability. A general contractor will be liable only if the four requirements of the common work area doctrine are met, including that a “significant” number of workers, being more than four workers, were exposed to the hazard.
A news story from the Leelanau Enterprise with additional information about this case can be found at www.leelanaunews.com in the May 2007 Archives section.
Posted by Mary Wreford; Approved by Lea Ann Sterling, Esq., July 6, 2007
The information presented in this article is for general information only and should not be construed to be legal advice.