Facts

Plaintiff Tomas Tolento worked for Caliber Interiors Inc., a drywall subcontractor. Plaintiff fell 20 feet while working at a construction site.

Plaintiff filed suit against Demolition Services Inc. and RD Olson, the general contractor on the project.

PLAINTIFFS' CONTENTIONS: On his second day on the job, Tolento was asked to find a piece of plywood. He found a piece that was lying on the ground. The plywood was unmarked and unsecured. He picked up the plywood with his hands. He took one step forward, and fell 20 feet to the floor below. The plywood was covering an HVAC opening that was created by one of defendant Demolition Services Inc.’s employees.

Plaintiff alleged that one of Demolition Services’ employees violated OSHA regulations that require that all floor openings large enough for someone to fall through shall be guarded with a cover, marked with a warning and secured to prevent inadvertent removal. Plaintiff also sued RD Olson alleging that the general contractor owed a duty to provide a safe working condition to workers, which included identifying the danger of an unmarked and unsecured floor covering.

Plaintiff Tolento sued for his bodily injuries. Plaintiff Rosalba Ochoa sued for loss of consortium. Plaintiff-in-intervention Insurance Company of the West sought reimbursement for worker’s compensation benefits paid to plaintiff in the amount of $263,643.

DEFENDANTS' CONTENTIONS: Demolition Services claimed that its employees did cover the opening properly and someone else must have removed the cover. Demolition Services argued that even if its employee failed to cover the opening property, RD Olson should have told its workers that the opening was not covered properly. Further, Demolition Services argued that because the property owner had accepted its work as completed, it was immune from liability under the complete and acceptance doctrine. Lastly, Demolition Services contended that Tolento’s employer was negligent in not instructing and training Tolento regarding fall protection, noting that it was Tolento’s second day on the project and that its foremen knew about the subject opening.

RD Olson filed a motion for summary judgment that it owed no duty to provide Tolento with a safe working environment and that any responsibility for covering the opening lied with Demolition Services.

Injuries

Plaintiff Tolento suffered head trauma resulting in memory loss and behavioral changes, rib fractures, fractured right elbow, hip fracture, and lumbar disc injury at L5-S1. Plaintiff Ochoa suffered loss of consortium, physical and financial support.

Result

The parties agreed to settle for $4 million at mediation with plaintiff-in-intervention receiving $215,350 and plaintiffs receiving the balance. General contractor RD Olson cross-complained against subcontractor Caliber Interiors Inc. for expressed indemnity. When the court granted RD Olson’s motion for summary judgment, the cross-complaint became moot.