Facts

Plaintiff Frank Lathrop was working for Bantus Inc. dba Dave Meyers Construction, on the construction of two roofs, one at the Clovis Crossings Shopping Center and the other at the Petco Building in Fresno.

On Oct. 4, 2012, Gary Tolladay, the superintendent on the job site, accessed the roof through a roof access hole that was cut by two employees of the framing contractor Bantus Inc., approximately one-two days before, in order for a roof hatch to be installed at that location. After cutting out the plywood they had placed it diagonally over the hole and nailed it down. Tolladay accessed the roof through this opening and removed the plywood. He went up to the roof via a scissor lift along with an inspector for the City of Clovis for an inspection of the roof. They then exited through the same access hole. HVAC workers with defendant, Valley Air Conditioning Engineering Inc., also accessed the roof on Oct. 4, through the subject opening.

On Oct. 5, 2012, Lathrop began working on the roof of the Petco building. Lathrop was working was spreading plywood on the other end of the roof in order that he and his co-workers could then raise it up and nail it to the parapet wall. While working, Lathrop fell through a plywood covering and landed 20 feet below.

Plaintiff sued Michael R. Tolladay Corp., the general contractor on the project, and Valley Air Conditioning Engineering Inc., the subcontractor. Bantus, the framing contractor, was sued on a cross-complaint.

PLAINTIFF'S CONTENTIONS:
Plaintiff contended that Tolladay, his foreman, and the city inspector examined the roof for approximately 15 minutes and then exited through the same access hole. Plaintiff contended that although Tolladay replaced the plywood he did not secure it. Plaintiff argued that Tolladay did nothing to warn any of the trades on the jobsite or any of his employees regarding the opening nor did he insure the opening would not be used as an access point as he had done, which he later admitted to the investigating police officer.

The next day, plaintiff accessed the roof via a scissor lift operated by another worker and they went through one of the rooftop unit or HVAC openings. Lathrop was placing the plywood on the roof, when he fell through this unsecured plywood covering and landed 20 feet below on the cement. Lathrop was on his second day of employment with the framing contractor at the time of the accident.

Plaintiff claimed that Tolladay and Valley Air Conditioning Engineering further breached the holding of Suarez v. Pacific Northstar Mechanical Inc., 180 Cal.App.4th 430 (Cal. App. 1st Dist. Dec. 2009), which held in part that Cal OSHA provisions impose a duty on each employer, at a multi-employer work site, to report all non-obvious hazards about which the employer learns because its employees were exposed to them during the course of their work, even if the employer in question did not create the hazard. Moreover, a breach of that duty is actionable and tort by any worker at the site who is subsequently injured by the hazard that was not reported.

Plaintiff claimed that Tolladay violated the California Labor Code, section 6400, Title 8CCR section 336.10, Title 8CCR section 336.11, California Labor Code, section 6306, General Industry Safety Orders, section 3203, and Construction Safety Orders, sections 1509, 1510, 1511, 1632.

DEFENDANT'S CONTENTIONS:
Defendants contended that the employer, Bantus was primarily at fault for creating the opening and then not permanently securing it or warning of its existence. Defendants also contended that plaintiff was comparatively at fault and solely responsible for his injuries for walking through the opening.

Lathrop testified in deposition that he fell through the same hole through which he previously entered the roof. Tolladay filed a cross complaint against both Valley Air and Bantus for express indemnity and breach of contract.

Specials in Evidence

$1,315,325 In dispute

Injuries

Plaintiff was hospitalized at Community Regional Medical Center in Fresno and found to have a traumatic brain injury. A CT head scan showed large areas of low density in the bilateral frontal lobes, edema, subarachnoid hemorrhage, and occipital bone fracture. A neuropsychologist found that he had a mild neuro-cognitive disorder along with adjustment disorder, depressed mood, and a pre-existing substance abuse disorder (alcohol and methamphetamine) that is in full-sustained remission. He also had a T12 fracture and a severe L1 burst fracture into the spinal canal, he had neurogenic bowel and bladder with erectile dysfunction and had to self-catheterize four to five times a day and modulated his bowels by medications. He had a T12 corpectomy with posterior fusion at T12-L2 and subsequently in March of 2013 he had an L1 retroperitonean corpectomy, fusion of T12-L1 and fusion of L1-L2, and posterior placement of pedile screw instrumentation. The defense's independent medical exam in neuropsychology and physical medicine and rehabilitation were not to take place until May 2014. The defense had requested a vocational interview and evaluation and plaintiffs' attorneys declined because there was no statutory or case law to support such an examination. The defense held that plaintiff could go back to work in another field. Defense claimed that Lathrop had resumed doing substantial work around his house and was able to care for himself in all regards by the time of the mediation.

Result

The case settled for $4.5 million in cash and annuities through Berkshire Hathaway.

Other Information

The workers' compensation carrier was not prepared at the mediation to discuss resolution of their lien/credit rights and their lien amounted to approximately $693,000 for medical billings paid and approximately $55,000 of that figure was for temporary disability. Plaintiffs have agreed to hold harmless, indemnify and defend the lien and had proposed that this be done in front of an arbitrator in May 2014. According to plaintiffs, employer fault along with a finding of credit threshold will determine if the intervenor gets any reduction in the workers' compensation case. If the intervenor does not agree to arbitration, the complaint in intervention will proceed to trial on July 14, 2014, in Fresno County Superior Court. Settlement amount is as between plaintiffs, defendants and cross-defendants only. According to defense, the complaint in intervention on behalf of plaintiff's employer to recover workers comp benefits has not settled, but plaintiffs agreed to defend and indemnify defendants and cross-defendants from that claim. FILING DATE: Dec. 17, 2012.