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ARTICLE ID 29023

$________ INCLUDING $________ PUNITIVE AWARD - WORKPLACE LIABILITY - DEFENDANT GENERAL CONTRACTOR GROSSLY NEGLIGENT IN THE HIRING OF CLEARLY INEXPERIENCED SUBCONTRACTOR TO PERFORM HIGHLY HAZARDOUS "SPRAY PAINTING" WORK IN "CONFINED SPACE" AREA - SUCH WORK REQUIRES KNOWLEDGE AND EXPERTISE DUE TO HIGH FLAMMABILITY RISK.

Mobile County, Alabama

The male plaintiff was employed by a subcontractor hired by the defendant general contractor to perform "spray paint" work on a job overseen and managed by the defendant. The plaintiff contended that the particular job he was assigned to perform required specific knowledge, training and expertise and that the defendant, a highly experienced general contractor, knew or should have known that the plaintiff’s employer subcontractor was not qualified to perform the work safely. The plaintiff contended that the defendant hired him despite his lack of knowledge regarding the hazards of spray painting in a confined space. As a result, the plaintiff was engulfed in flames emanating from a flash-fire that occurred during the job. The plaintiff suffered severe burn injuries to over 60% of his body, requiring extensive and prolonged medical treatment, numerous hospitalizations and several surgeries. The plaintiff is left with permanent scarring, pain and sensitivity.

In addition to asserting a claim for substantial compensatory damages, the plaintiff claimed that he was entitled to an award of punitive damage based upon evidence indicating the significant expertise in all areas of general contracting held by the defendant, from which the jury could infer that the defendant knew or should have known that the job for which the plaintiff was hired was extremely hazardous and required extensive training and experience. The plaintiff also argued that given the nature of the work to be performed by the plaintiff, the defendant had an absolute duty to ensure that the plaintiff was sufficiently trained and experienced to perform the work in a safe manner.

The subject accident occurred on September 25, ________, when the plaintiff was working as a painting subcontractor on a job overseen by the defendant general contractor. The defendant J.C. Duke & Associates General Contractors had been hired to repair fire, smoke and water damage sustained by the Lott Methodist Church in Mobile, Alabama.

The defendant had retained the plaintiff and his partner to do painting work throughout the structure in question, including spray-painting oil-based Kilz in a carport attic. The plaintiff offered evidence that a carport attic is a "confined space" as specifically defined by OSHA regulations as well as construction industry standards. J.C.

Duke hired the painting subcontractor to paint the inside of the church building. J.C. Duke dictated that the subcontractor use oil-based Kilz (to contain smoke odor) and instructed the subcontractor to apply the oil-based Kilz with a spray machine.

At the time of his injury, a painting subcontractor employed the plaintiff as a painter. This subcontractor consisted of two employees (the plaintiff and the owner/principal). The evidence revealed that the painting subcontractor employing the plaintiff did not have a safety program and offered no safety training to its employees. Additionally, the subcontractor offered no OSHA training and was unaware of the OSHA regulations and/or industry standards applying to the subject work.

The defendant noted that the defendant subcontractor had no "confined space" training, did not have a "hazardous communication program" and had not received any training to facilitate the recognition of hazards present on the job.

The plaintiff further contended that the defendant J.C. Duke & Associates General Contractors is a sophisticated and experienced general contractor in southwest Alabama. A number of J.C. Duke employees have received OSHA training and are "OSHA certified." All J.C. Duke employees attend weekly safety meetings. Topics covered at these meetings in the weeks immediately prior to the plaintiff Bolton’s injury included confined space and hazard evaluations on the job site. Additionally, the defendant J.C. Duke maintained a comprehensive safety manual, which included a detailed section on confined space work, the designation of competent persons employed to perform confined space work, a comprehensive permit system for confined space work, and provisions for assuring that only qualified and competent subcontractors are hired to perform work on J.C. Duke’s jobs.

The defendant general contractor denied that the painting work was inherently dangerous and denied that he should have known the subcontractor and its employee (the plaintiff) was unqualified to perform the work.

The defendant additionally argued that the plaintiff’s employer was responsible for any injuries suffered by the plaintiff, arising out of performing the specific painting work the subcontractor was hired to perform.

On the issue of damages, the evidence established that the plaintiff sustained third degree burns over two-thirds of his entire body. He suffers severe disfigurement to the hands arms, torso and legs. The defendant’s own medical expert testified that the plaintiff is permanently disabled from returning to gainful employment as a result of the injuries sustained.

The plaintiff additionally sought an assessment of punitive damages against the defendant based upon evidence exhibiting a callous indifference to the welfare of the plaintiff’s employees in the performance of the work.

The jury found for the plaintiff and returned a gross verdict of $________, including $________ in punitive damages.

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