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Cumberland County, NJ

This action involved a plaintiff who was walking up the wooden unfinished stairs to the second level of the very large private eight-car garage home that was under construction in order to pour the concrete floor. The plaintiff contended that he was not aware that an elevator was being built, that no one on site, especially the GC/owner ever told him, no barrier or yellow construction tape had been placed and that the shaft was left open and unguarded. The plaintiff maintained that he was looking straight ahead looking for his remote control unit which he left on wooden frame of a window. As he turned left around the corner of the stairway, and was confronted by what the defense called a “spider web” of metal and wooden studs, he took two or three steps and stepped into the open shaft and fell 12-15 feet to the concrete floor below.

The plaintiff named the individual having the home built, contending that he listed himself on all permits as “The Supervising Contractor”, took an active role in the more than five-year-old project, had substantial safety responsibilities, and was acting as the GC. The plaintiff also named the construction company involved, whom the plaintiff contended was the contractor who built the stairs and the elevator shaft, and who had covered and then left uncovered the elevator shaft. The plaintiff maintained that the contractor negligently failed to adhere to OSHA regulations and that it also failed to follow safe construction practices.

The plaintiff had been at the site once before approximately three months earlier to pour concrete for the first elevated floor of the house. The plaintiff related that when he arrived on the day of the fall, he was told to pump concrete across the second floor deck, but no one warned him of the elevator shaft, and someone had placed his remote control unit on the first elevated floor. The plaintiff contended that after he climbed the stairs, he looked for his remote, stepped one or two steps to his left and fell through the shaft, which he did not ever see or notice, in what he called the “maze” of studs.

The plaintiff’s OSHA expert, Vince Gallagher, related that regulations required that such an open shaft to be covered. The plaintiff contended that the construction company had previously removed both the plywood cover and a 2 x 6 wooden barrier that were protecting the shaft, and failed to either replace the cover/barrier or place yellow construction tape at eye level that would act as a visual cue.

The defendant owner contended that the framing contractor was the GC and that the primary duty for safety of the shaft rested with the construction company, whom the owner contended was the general contractor; and the owner claimed the open shaft was open and obvious. The construction company maintained that the owner was the GC, it was a small company with limited experience and “little knowledge” of OSHA regulations, and contended that its role in the project was limited. It contended that the open shaft was not dangerous because it was so large and open and obvious to anyone with any experience on construction sites, such as the plaintiff.

The plaintiff contended that the jury should consider that the owner of this defendant had taken college courses regarding project management, and should have been fully conversant with its obligations under OSHA. The defendants also contended that the plaintiff was overwhelmingly comparatively negligent. The plaintiff countered that he was not advised that an elevator was being built in the home and that it was not reasonable for him to anticipate such a hazard. The plaintiff also argued that the jury should consider that the interior was much darker than the outside from which he had recently entered. The plaintiff further contended that had the simple measure of placing yellow construction tape been made, the incident would not have occurred.

The defendants further argued that the plaintiff had caused the incident himself by attempting to walk across a two by six that was shown in a photo taken at the scene by plaintiff’s co-employee, which 2 x 6 was left over the opening. The plaintiff denied that this testimony should be accepted. The plaintiff showed that in another photo taken that same day, and earlier, by the same employee, the 2 x 6 was NOT scene over the opening, thus suggesting that someone put the 2 x 6 board over the opening BEFORE plaintiff fell. The plaintiff did not recall whether there was a board or not, because plaintiff did not see the hole before he stepped and fell into it. The plaintiff also pointed out that there was no indication or suggestion in any discovery from either defendant that alleged the plaintiff to have acted in such a reckless and/or fraudulent manner.

The plaintiff maintained that he suffered a rotator cuff tear to the left, non-dominant shoulder that required arthroscopic surgery and which will prevent him from continuing to work in a physically demanding job. The plaintiff also contended that he suffered a lumbar compression fracture. The plaintiff maintained that he will be permanently unable to work in a physical setting. The defendants contended that any claimed wage loss was highly speculative, especially in view of economic uncertainties in general. The plaintiff’s vocational expert testified that because of such factors, he was calculating plaintiff’s claimed lost earnings on the basis of 50% of the amount the plaintiff would command if he was working continuously.The jury found the construction company 50% negligent, the owner 40% negligent and the plaintiff 10% comparatively negligent. They then rendered a gross award of $________.

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