Facts

Plaintiff John Doe, a 58-year-old pipe fitter and welder, was employed as a foreman for a contractor that had been hired to construct several new processing units at a refinery located in the Bay Area. The contractor was responsible for all construction-related activity for the expansion at the refinery, including ensuring a safe work environment.

On Dec. 9, 2008, during the graveyard shift, Plaintiff's initial task was to assist two members of his crew in placing a large tank at an unpaved work site. As a crane lifted the tank and positioned it toward the two-crew members, Plaintiff began clearing the landing area of trip hazards. Plaintiff noticed a piece of plywood on the ground that appeared to be broken into a little more than half of a full sheet of plywood. Plaintiff lifted the edge of the plywood and took a step forward with his right leg so that he could perform the lift with his legs. Unbeknownst to Plaintiff, the broken piece of plywood was covering an open manhole, and he fell into the hole.

According to the accident investigation reports, the plywood was inadequately marked to show that it was covering an open hole. It is unknown who employed the individual who laid the plywood over the hole and failed to properly mark it.

First aid was rendered on-site for back and knee injuries. Plaintiff continued to work for several weeks through pain.

PLAINTIFF'S CONTENTIONS:
Plaintiff contended that despite the delegation of control to the contractor, the refinery negligently control over the safety at the work site, which contributed to Plaintiff's injuries. Specifically, Plaintiff alleged that the refinery retained control by issuing safe work permits for the work shifts performed by the contractor's employees, and that these permits involved work site walk-through in which dangerous conditions were identified and remedied. By issuing a permit to Plaintiff's work site, and by failing to identify and remedy the improperly marked hole, Plaintiff claimed that the refinery's negligence contributed to his accident.

DEFENDANT'S CONTENTIONS:
Defendant contended that both by contract and in practice, all work at the refinery for the construction of the new processing units had been delegated to the contractor, including delegating the maintenance of the safe work environment. Defendant also contended that the contractor had safety personnel on the ground to address all safety issues at the work site.

Defendant claimed that the contractor, or employees of its subcontractors, was responsible for improperly marking the hole and that Plaintiff was at fault for removing the plywood in an unsafe manner. Defendant also claimed that Plaintiff's claims lay solely against the contractor, and were thus precluded by the workers' compensation exclusive remedy rule.

Specials in Evidence

$35,000 paid by workers' compensation carrier $1.36 million (past and future)

Injuries

Plaintiff was diagnosed with a left meniscus and medial collateral ligament tear (MCL) requiring two surgeries, and several disc bulges in his lumbar spine resulting in sciatic nerve pain. After taking assignments with five different contractors after the accident over the next year, Plaintiff eventually could not continue working as a pipefitter and welder.

Result

The case settled for $1.15 million at mediation with Michael J. Ney, Esq. The settlement included a compromise and release of Plaintiff's permanent disability by workers' compensation case, but with future accident-related care to be paid by workers' compensation.

Other Information

FILING DATE: November 2010.