Our client was working as an insulator for a local insulation business. On May 22, 2007, he and a colleague were assigned to install insulation at a residential construction site in Brookfield. This was the first time either he or anyone from his employer had been to the residence. Upon entering the home with his work order in hand, our client began to walk through the home inspecting it for insulation needs. Unfortunately, while he was walking and looking up towards the ceiling, in order to gage exactly the type and amount of insulation needed, he fell into an unguarded hole approximately 10-12 feet to the concrete basement floor below. He sustained an L2 traumatic burst compression fracture and a left hand/wrist injury in the fall.

The general contractor had no knowledge of the specific OSHA regulations and/or standards applicable to guarding holes while constructing residential homes. The testimony developed during litigation indicated that the general contractor sporadically guarded the subject opening; in other words, sometimes it was guarded, and sometimes it was not. When it was guarded, the general contractor simply put a 2x10 across the opening instead of putting up a top rail, middle rail and bottom rail, as required by OSHA regulations..

Deposition testimony also revealed that the last time the general contractor was on the premises prior to Tuesday, May 22nd was the previous Thursday, May 17th. It was the general contractor's testimony that on that date he recalled placing a single 2x10 across the subject floor opening. In addition, the general contractor was well aware when he left on the 17th that the insulation crew was scheduled to arrive on May 22nd. The only individual scheduled to visit the premises and/or conduct any work at the site between May 17th and May 22nd, however, was the City Inspector. The inspector testified that he did not remove nor would he remove any type of barricade in the area of any floor opening had it been present. Furthermore, the City Inspector had no recollection of whether a guard was in fact present when he inspected the premises on May 18th. Nevertheless, since the 2x10 was not present on the date of the fall, such testimony regarding the placement of the 2x10 on May 17th was questionable at best.

With respect to whether the 2x10 was present on the date of the fall, testimony from colleagues that responded to the scene within hours after the fall indicated not only that there was no 2x10 in front of the floor opening in question but there was no 2x10 remnants anywhere on the inside of the home. Pictures were taken substantiating this contention. In fact, one of our client's supervisors testified that he had to go outside into a wood pile in order to find a remnant to place across the front of the subject floor opening. These individuals also testified that the hole was camouflaged, that is, concealed amongst a sea of particle board.

Our injured client underwent a surgical procedure and had to have hardware implanted in order to support his spine. He later underwent extensive therapy to regain his ability to walk. Unfortunately, he was unable to return to his job and, in fact, was given work restrictions that severely limited his ability to return to any type of gainful employment. Furthermore, while he has made significant strides in his recovery, he is only able to walk with the assistance of a cane.

The general contractor was insured only for $1,000,000.00. Unfortunately, the general contractor was not recoverable for any additional amounts above and beyond the limits because of limited personal assets. Because the client realistically recognized that he may have a risk of contributory negligence for not looking out for his own safety, he agreed to settle the matter for $950,000.00. The settlement was achieved at mediation, thus no trial was necessary to achieve this result for our client. Through the use of a structured settlement the proceeds (along with his potential to continue receiving workers' compensation benefits) will provide the client with an income flow for the remainder of his life.

If you or any family or friends are involved in any similar premises liability injury producing incidents, and/or are injured at a residential or commercial construction site, please call the attorneys at Domnitz & Skemp, S.C.