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ARTICLE ID 29358

- ACTION BROUGHT UNDER ILLINOIS STRUCTURAL WORK ACT - PLAINTIFF FALLS FROM ALLEGEDLY UNSAFE SCAFFOLD - CLOSED HEAD INJURY - ORGANIC BRAIN DAMAGE WITH COGNITIVE DEFICITS.

Will County, Illinois

The subject lawsuit involved a claim by a 50-year-old ironworker who fell from a 15 foot high scaffold he was using in order to gain access to a crane rail approximately 40 feet above ground, upon which he intended to work. The plaintiff brought suit against Commonwealth Edison, the owner of the premises where the accident occurred, and William A. Randolph, Inc., the general contractor of the project upon which the plaintiff was working at the time. The plaintiff sued under terms of the Illinois Structural Work Act which, by it’s terms, provides for a statutory cause of action for workmen injured due to an unsafe scaffold. The plaintiff sustained no fractures, but alleged that he suffered a closed head injury causing organic brain syndrome with resulting cognitive deficits.

The accident occurred in the Interim Radiation Waste Storage Building at Commonwealth Edison’s Dresden Nuclear Power Plant in Morris, Illinois. The plaintiff was employed as a job superintendent for Western Architectural Iron, which had been retained by the defendant general contractor, William A.

Randolph, Inc. to perform structural iron work relative to the construction of the building. The plaintiff claimed that he was using the scaffold owned by the defendant general contractor as a work support at the time he fell. The plaintiff alleged that when he fell, he was in the process of pulling up a bucket of tools from the ground floor to the top stage of the 15 foot high scaffold, intending to carry the bucket up to the crane rail by use of a ladder that had been placed on the top deck of the scaffold. The plaintiff apparently was overcome by fumes in the building from either a painting demonstration and/or the operation of a gasoline powered crane in another area of the building.

The plaintiff’s safety expert testified that the scaffold was unsafe in that it lacked guardrails and adequate decking on the top stage from which the plaintiff fell. The plaintiff’s expert testified that the decking at the 15 foot level consisted of two scaffold planks, approximately one foot wide each, which were separated so as to create an open space which he maintained constituted a hazard. The plaintiff’s safety expert asserted that the scaffold as designed and constructed violated numerous applicable OSHA regulations. The plaintiff additionally elicited testimony from co-workers to the effect that the defendant general contractor and the defendant premises owner had been advised of the unsafe condition of the scaffold and had failed to take any steps to remedy it. The defendant countered that the scaffold did not require guardrails and/or full decking since it was being used not as an elevated work support station, but only as a means of access. The defendant further maintained that despite the OSHA regulation, the "scaffold" from which the plaintiff fell was safe and suitable for his purposes as an ironworker.

The defendant argued that the plaintiff’s purpose was to simply walk across the scaffold in order to climb up the ladder and step out onto a structural beam to perform work on an overhead crane rail, thus not intending to use the scaffold as a work support.

The defendant asserted that since the scaffold was to be used by the plaintiff simply as a means of access, then OSHA regulations pertaining to handrails and decking did not apply since the regulations, by their terms, pertain only to platforms used to support workmen while performing construction work at an elevated level. The defense elicited testimony indicating that ironworkers typically work at elevated work stations without guardrails and on relatively narrow planking. The defendant argued, therefore, that OSHA regulations were not applicable to the particular situation presented by the facts of this case. On cross- examination of the plaintiff’s safety expert, defense counsel elicited testimony that OSHA regulations pertaining to scaffolds contemplate different scaffold configurations for different trades. The defendant finally contended that the plaintiff had failed, as required by contract, to notify the general contractor of his intended use of the general contractor’s scaffold on the day in question. The defense stressed that no ironworkers had worked in the building for at least a week prior to the occurrence and argued that the defendants, without having been notified, could not have known of the particular use of the scaffold on the day in question, which the defendant argued was especially clear in light of the fact that the accident happened in the morning shortly after work commenced.

The plaintiff’s treating neurologist, neuropsychologist and neurosurgeon were called to testify with regard to the organic brain syndrome allegedly sustained by the plaintiff as a result of the closed head injury suffered in the fall. Specifically, these experts explained that the plaintiff suffers from certain cognitive deficits associated with organic brain damage, including difficulty with verbal expression and written comprehension, as established through neuro-psychological testing. The defense, through it’s expert psychiatrist, claimed that the plaintiff suffered only from a post-concussion syndrome with a resulting untreated depression which, by itself, could result in the cognitive deficits testified to by the plaintiff’s expert neuropsychologist. The defendant’s experts noted that all neuroradiologic testing, such as CAT Scans and nuclear magnetic resonance imaging of the brain, failed to disclose any objective signs of organic brain injury. The defendants maintained that with appropriate treatment, the plaintiff’s depression as well as his cognitive deficiency were curable.

The plaintiff incurred approximately $________ in medical bills for treatment up to the time of trial and claimed future medical expenses of $________. The plaintiff claimed past lost income of $________. The plaintiff’s expert economist projected future lost earning capacity of $________. The final settlement demand was $________ made during trial reduced from the pre-trial demand of $________. The last offer tendered by the defendants was $________ plus a waiver by the Workmen’s Compensation insurer of it’s right to recoupment of it’s payment under the Illinois Workmen’s Compensation Act. The jury returned a no cause verdict for both primary defendants which mooted the third-party claim against the plaintiff’s employer. The jury answered a special interrogatory to the effect that neither defendant knew or should have discovered the plaintiff’s use of the scaffold on the date of the accident. The jury also answered another special interrogatory to the effect that Commonwealth Edison was not one of those entities to be considered in charge of the work for purposes of imposition of Structural Work Act liability against this defendant.

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