Volume 5, Issue
No. 11
November, 2003
NE0311 #4 -- Fall from Scaffolding on Job Site - Ruptured
Spleen, Fractured Ribs, Severe Head Laceration, Shoulder Surgery -
$290,000 Settlement.
Lance D. Bailey,
vs.
Land-Ross Constructors Co. and Merrimac Stone Co.
Fourth District Court
Douglas County
Judge
Moran
Case
No. 997-739
Plaintiffs Attorney: William E. Gast, James E. Bachman.
Defendant's Attorney: Thomas Grennan, James Garriott.
Defendants Insurance: Cincinnati Insurance, The Providence
Mutual Fire Insurance, Travelers Insurance.
Plaintiff's Experts: R. Michael Gross, M.D., Orthopedic
Surgeon; Gail Leonhardt, Rehabilitationist.
Defendant's Experts: None disclosed.
Plaintiffs Age: Male, 23. Work: Stone Mason.
Facts: Plaintiff at the time of this accident on August 17,
2000, had been employed for 10 days as a stone mason for Merrimac
Stone Company which was subcontracting on the Temple project at
the Mormon Cemetery. The project was managed by Lund-Ross
Constructors. Plaintiff was walking along scaffolding carrying a
70 lb. stone when the scaffolding gave way. Plaintiff fell 20
feet, landing face first on the ground, with the stone falling on
top of him. Plaintiff alleged that the scaffolding had not been
properly erected and that OSHA violations had been previously
reported to both contractors.
Injuries: Plaintiff was unconscious for a short time. He was
taken by ambulance to St. Joseph Hospital where he was diagnosed
with a ruptured spleen, fractured ribs, a severe head laceration,
a fractured right scapula, and severe injury to his right
shoulder. Surgery on the shoulder was performed in March, 2001,
after a brief attempt at therapy proved unsuccessful. Plaintiff
was rated with a 10% permanent disability.
Medical Bills: $57,712.
Lost Wages: Plaintiff suffered past lost wages in excess of
$20,000. Loss of future earning capacity of 30-40% was calculated
over the remainder of Plaintiffs expected worklife of 40 years.
Settlement: This case settled for $290,000. The settlement
included an agreement to reimburse the worker's comp carrier a
total of $39,000 in full satisfaction of its $71,000 subrogation
interest.
Legal Issues: There was some question of apportionment of
liability of the general contractor for injuries to an employee of
a subcontractor where "the employer retains control over the
contractor's work, or .... the employer has a nondelegable duty to
protect another from harm caused by the contractor." Lund-Ross was
permitted by the trial court to file an interlocutory appeal to
the Supreme Court. That court ruled that it had no jurisdiction to
consider the appeal in the absence of a "final order." Counsel
commented that apportionment in this case is clearly inapplicable,
making the general contractor 100% liable.
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