New Jersey Jury Verdict Review & Analysis

Volume 22, Issue 1
June 2001

$750,000 Recovery - Failure of General Contractor At Single Family Home Development Site To Provide Safe Work Place - Absence of OSHA Required Fall Protection System - Plaintiff Roofing Subcontractor Employee Assigned To Work On Roof During Icy Weather Conditions - 20 Foot Fall - Skull Fracture - Cognitive Deficits - Partial Right Sided Paralysis.

Ocean County

In this action, the plaintiff, a 38-year-old roofer employed by a roofing subcontractor at a single family home development site, contended that the defendant general contractor negligently failed to ensure that a fall protection system required by OSHA was utilized and negligently failed to advise the subcontractor to refrain from venturing onto the roof on the winter day in question. The plaintiff contended that such advisements were required because the weather conditions, consisting of below-freezing temperatures and ice and snow on the roof, were unsuitable for roofers. The plaintiff further contended that he was ordered to use the ladder to climb to the roof to remove snow and that he fell some 20 feet, suffering a skull fracture, a subdural hematoma, permanent substantial cognitive deficit, slurred speech and permanent right sided hemiparesis which creates balance difficulties, weakness and cause a limp.

The defendant general contractor maintained that the obligation to utilize any fall protection devices and to decide if the weather was appropriate for work on the roof that day rested with the plaintiff's employer. There were two other workers on the roof in addition to the employer and none of the workers actually witnessed the fall. The plaintiff had no recollection of the incident and it was unclear whether the plaintiff fell from the roof itself or fell as he was climbing the ladder.

The evidence disclosed that the plaintiff had been working as a roofer's assistant for the defendant for the preceding approximate seven mother period, that he had just been promoted to a roofer and that the incident occurred on the first day in which he worked on a roof. The plaintiff maintained that the area had been frozen for some time, that a snowstorm had occurred some eight days earlier and that ice and some snow remained on the roof. The plaintiff would have presented one of the co-workers who would have testified that the plaintiff had been ordered up on the roof by the employer in order to clear snow from the roof. The other co-worker could not be located. The subcontractor would have denied that the conditions were too severe to permit them to work on the roof.

The defendant general contractor did not dispute that the weather conditions were unsuitable for roofing work, but contended that the decision as to whether roofing work would be performed that day rested with the plaintiff's employer. The plaintiff would have countered that in view of the highly foreseeable nature of such an accident occurring when performing roofing work during such conditions, the jury should be permitted to consider that the defendant violated a common law duty to provide a safe place to work. The plaintiff also elicited testimony from the G.C. During his deposition that if he knew he workers were present on the roof that day, he would have instructed them to cease work.

The defendant would have argued that he did not have notice that the roofers would be working that day and maintained that he could validly rely upon the subcontractor to make such decisions. The plaintiff countered that as the G.C., the defendant had control over the project and had an obligation to be aware of the work being done by his subcontractors. The plaintiff also would have pointed out that he general contractor had testified at his deposition that he had no experience, training or knowledge of OSHA requirements, had not discussed any safety concerns with his subcontractors, that he had permitted them o come to the site unannounced and without his knowledge and did not believe that it was his responsibility to follow OSHA regulations or see that they were enforced. The plaintiff would have argued that based upon this testimony, it was clear that the defendant G.C.'s failure to take an active role in safety issues created the environment in which it was much more likely that the subcontractors would flout safety rules and believe that they could do so with relative impunity, arguing that this evidence constituted a substantial factor in the happening of the accident. The defendant would have argued that this position should strongly be rejected.

The plaintiff could not recall the incident because of the head trauma. The plaintiff's co-worker would have testified that he heard the ladder crash and that the plaintiff was then found on the ground. The plaintiff would have argued that whether he fell as he was climbing the ladder, which he contended was defective because of the absence of footings, or whether he fell from the roof itself, the weather conditions rendered it much more likely that the fall would occur and that the incident would not have occurred if a fall protection system had been in place, arguing that the defendant should be liable notwithstanding the question of the precise manner in which he fell.

The plaintiff contended that he suffered a skull fracture and a large, right front temporal epidural hematoma with brain contusion requiring a craniotomy. The plaintiff contended that he suffered right sided hemiparesis which is permanent in nature and that although he does not require a wheelchair, he suffers significant balance and coordination difficulties, sever weakness on the right side and walks with a limp. The plaintiff also contended that he suffered severe speech difficulties and extensive cognitive deficits. The plaintiff maintained that he required a tracheotomy, endoscopic gastrostomy for feeding and the insertion of Greenfield filter to prevent embolus.

The plaintiff was hospitalized for a few months and then spent five months in a rehabilitation hospital, relearning to walk, talk, attend to his personal hygiene and regain some motor coordination and physical strength. The evidence reflected that the plaintiff was incontinent for some months and that his condition has resolved. The plaintiff also related that upon discharge from rehabilitation hospital, he continued to receive extensive out-patient therapy to address his cognitive and speech deficits. The plaintiff indicated that he as made a relatively good recovery in view of the extent of the neurological and traumatic brain injury. The plaintiff related that his speech has improved although it remains slurred to some extent and that he is now able to attend to his personal hygiene.

The evidence also reflected that the plaintiff can now be left alone for several hours, can vacuum and do simple tasks around the house. The plaintiff maintained that although he short term memory deficits have continued to be sever, his long term memory has improved substantially. The plaintiff's neuropsychologist would have contended that notwithstanding this improvement, the plaintiff's intellectual and cognitive abilities remain very compromised and that such deficits are permanent in nature.

The plaintiff was married four months before the accident occurred and his wife would have testified that she now feels more like a caregiver than a wife. The plaintiff, who was earning $500 per week, maintained that it is clear that he is permanently unemployable.

The defendant had $1,000,000 in coverage. The case settled prior to trial for a structure with a present value of $750,000 plus a reduction of the comp lien from $317,000 to $200,000.

REFERENCE
Plaintiff's safety expert: Vincent Gallagher from Audubon.
Roche vs. Nispen Custom Homes, Inc., et al. Docket no. L-443-99; 4-16-01.

Attorney for plaintiff: Shelley L. Stangler of Springfield.

COMMENTARY:
The defendant G.C. had maintained that he had a right to rely upon the independent contractor employer to decide if the weather conditions were suitable for roofing and to supply proper equipment and any required fall protection. The plaintiff would have argued that relatively recent case law supported his position that violations of OSHA regulations can be used as evidence of negligence against the G.C. and would have further argued that in view of the highly foreseeable nature of a fall from a roof during icy winter conditions, the G.C. should not be permitted to successfully avoid any responsibility for the actions of the subcontractor / employer. Additionally, the G.C. indicated in discovery that he did not have knowledge of OSHA requirements, had not discussed safety issues with the subcontractors and that he permitted them to come to the site unannounced and without his knowledge. In this regard, it is felt that this evidence would have greatly undermined the defendant's case if heard by a jury. Moreover, the plaintiff would have argued that such evidence underscored the plaintiff's contentions that the G.C. permitted an environment to exist in which safety violations were much more probable to occur and that this evidence was highly relevant on the issue of proximate cause. Further, although no witnesses saw the actual fall, the plaintiff argued that the incident simply would not have occurred if the required fall protection systems were in place and responsibility to follow OSHA regulations or see that they were enforced. Finally, the juror impact of the injuries would clearly have been heightened by the evidence that the plaintiff was married only four months before the accident occurred.