A $4 million settlement recently reached for a carpenter who fell off of a scaffolding at work in Lehigh County, Pennsylvania shows how personal injury lawyers can turn what looks like a simple workers compensation claim into a much larger settlement that does a better job of providing for the injured worker and their family after a catastrophic accident.
In the accident, as described by The Legal Intelligencer newspaper, the contractor fell more than 50 feet, fracturing his skull, ribs, pelvis, and spine (and thus suffering a spinal cord injury) when he fell in the gap between the scaffolding platform and the façade of the building. This type of situation – leaving open too much space between the platform and the building without a guardrail or a fall arrest system – is a classic OSHA violation. Section 1926.451(b)(3) provides:
Except as provided in paragraphs (b)(3)(i) and (ii) of this section, the front edge of all platforms shall not be more than 14 inches (36 cm) from the face of the work, unless guardrail systems are erected along the front edge and/or personal fall arrest systems are used in accordance with paragraph (g) of this section to protect employees from falling.
In the carpenter’s accident, the platform was supposed to have wood planks that covered the gap, but they had to be removed to move the platform. The failure to replace those plants would be a violation of Section 1926.451(b)(1)(i) of the OSHA regulations, which says:
Each platform unit (e.g., scaffold plank, fabricated plank, fabricated deck, or fabricated platform) shall be installed so that the space between adjacent units and the space between the platform and the uprights is no more than 1 inch (2.5 cm) wide, except where the employer can demonstrate that a wider space is necessary …
But here’s the big problem for the employee in terms of his compensation: this accident obviously occurred in the context of his job, and so he is entitled to workers compensation – which is a good thing – but which precludes him from suing his employer for negligence when the workers compensation is inevitably not nearly enough to cover his actual damages, pay his medical bills, and support his family.
So what do worker’s injury lawyers do in that circumstance? As I explained before my own legal blog, the lawyers focus on finding someone other than the employer who may have been at fault. And that’s just what happened in this case:
Rodney Zepp and his wife, Pamela Zepp, sued Eastern Exterior Wall Systems Inc., a sibling company to Rodney Zepp’s employer that had a contract to install panels on the facade of the courthouse, over alleged violations of its safety obligations; Alvin H. Butz Inc., the construction manager; Northeast Mast Climbers Inc., which owned the platform; and Alimak-Hek Intervect USA, which was the American distributor of the foreign-made platform.
The truth is, a construction site these days is rarely run entirely by a single company. Rather, the site will involve a mixture of companies, some of them affiliated with the general contractor, some of them other subcontractors, and some of them purely independent contractors, many of whom contributed to the accident. Here, the worker did not sue his own employer, but did sue a separate but related company that was also contracted to work there; the construction management company; the owner of the platform itself; and the distributor of the platform.
It’s easy to see why the plaintiff sued the related company and the contractor manager, because they were negligent in ensuring the area was safe for all the workers there, but it’s a little more subtle to explain why the owner and distributor of the platform or named as well. In a normal negligence lawsuit, the jury has to decide to what extent each defendant was responsible, but in a product liability lawsuit, the plaintiff can allege different theories against the different defendants, so that the construction manager is liable for failing to properly train the employees on-site in using fall protection features, while the owner and distributor of the platform are liable for selling a defective platform that could not be raised and lowered without removing the safety planks, thereby creating an OSHA violation and an unsafe condition.
That’s how the carpenter’s lawyers added an additional $4 million in compensation beyond the workers’ compensation, and it’s one of the standard techniques we use in construction fall accident cases.
For over 60 years, The Beasley Firm has applied creative legal thinking to help our clients recover over $1 billion in compensation for serious injuries and wrongful deaths. If you or a loved one has been injured on the job as a contractor, let us put our experience to work for you by using this contact form.
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