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Construction Worker Wins $9M After Fall At Site – Sub Tried To Blame General Contractor

MO Lawyers Media Staff//April 4, 2005//

Construction Worker Wins $9M After Fall At Site – Sub Tried To Blame General Contractor

MO Lawyers Media Staff//April 4, 2005//

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A worker who was severely injured in a fall at a construction site has won $9 million in his Jefferson County case against a subcontractor.
Kenneth Kohlfeld claimed that Rock Hill Mechanical Corporation cut a hole for installation of an air-conditioning unit but did not properly cover it or warn of the danger. Kohlfeld fell 40 feet after plunging through a piece of plywood.
According to James D. O’Leary of St. Louis, Kohlfeld’s attorney, Rock Hill blamed the accident on the general contractor, which had paid a workers’ compensation settlement and was thereby immune from liability. He said employees of the general contractor, McCarthy Brothers Construction, supported Rock Hill at trial.
“These were two companies that had had a long relationship, and it seemed pretty obvious to the jury what was going on,” O’Leary said. “Two big companies were scratching each other’s back in order to protect each other and defeat an injured worker’s claim.
“And given the size of the verdict, I’d say that the jury didn’t like the smell of that at all.” Legal observers say the verdict is the largest in Jefferson County history.
The verdict included $6.5 million to Kohlfeld and $2.5 million to his wife for loss of consortium.
Jeffry Thomsen, a St. Louis attorney for Rock Hill, said the company is currently preparing post-trial motions. Although he declined to comment on the details of the case, Thomsen was “shocked” by the verdict. “We thought we had a very good defense on liability,” he said. “And we didn’t think that they made a submissible case.”
A report on the March 22 verdict in Kohlfeld v. Rock Hill Mechanical Corporation appears on page 6. James Corrigan was O’Leary’s co-counsel on the case.


The accident occurred on Sept. 26, 1997, as Kohlfeld was setting up for work at the Bodine Aluminum Plant in Troy, Mo. The plant was then undergoing an expansion project which involved the construction of new buildings for the production of aluminum automobile engines.
The day before the accident, Kohlfeld had been asked by a foreman to work on the roof, where holes had been cut for the installation of HVAC units. Kohlfeld was to install plywood inside a “curb” that had been placed around the holes for the HVAC units, as part of a system that was intended to prevent condensation from entering the building.
While setting up for work, Kohlfeld stepped on a piece of unsecured and unmarked plywood that was covering one of the recently cut holes, and fell through to the ground below. He sustained a traumatic brain injury, a broken back that eventually required a spinal fusion procedure and the insertion of rods in his back, rib fractures, a ruptured spleen and a collapsed lung.
Kohlfeld was later declared permanently and totally disabled and received a workers’ comp settlement from McCarthy. Kohlfeld then filed a lawsuit against Rock Hill, the HVAC subcontractor.


At trial, Kohlfeld argued that Rock Hill was liable for his injuries because, “if you cut the hole, you own the hole,” O’Leary said. That aphorism is a pithy summary of the regulations set out by the Occupational Safety and Hazard Administration, O’Leary said. “Under OSHA regulations, if you create a hazard, which a hole in the roof undoubtedly is, it remains your responsibility until it is properly corrected as defined in the regulations.”
Instead of “one or two pieces of loose plywood laid over the hole,” Rock Hill should have placed a cover over the hole strong enough to withstand the weight of a man, should have marked the cover as a “hole” or a “hazard,” and should have secured the cover to the roof, O’Leary said.
The subcontractor also could have chosen to erect a 42-inch high barricade around the hole with a mid-rail and a toe board, he said.
In addition to the OSHA regulations, Rock Hill’s responsibility to properly cover the hole also was set forth in its contract with the general contractor, O’Leary said, as well as in its own safety manual, and in the safety standards of the Sheet Metal and Air Conditioning Contractors’ National Association.
“It wasn’t just one thing that established the responsibility of Rock Hill with respect to the hole,” O’Leary said. “It was all of these together which painted a very compelling picture.”


As it turns out, Rock Hill did not take any steps of its own to cover the hole after cutting it, O’Leary said. Instead, pursuant to what it claimed was an informal agreement concerning the “sequencing of work,” the plywood cover on the hole was placed there by a carpenter employed by McCarthy.
The carpenter who did the work had received no OSHA training on how to cover the hole, and had never worked on a commercial construction project before, O’Leary said.
Rock Hill tried to argue that the accident was Kohlfeld’s fault because he should have known that the plywood was covering a hole, and because he should have been “tied off” with a safety harness.
The company also argued that it was relieved of responsibility for the hole by its informal agreement with McCarthy, and that McCarthy should have provided the OSHA-compliant cover, barricade and marking.
Rock Hill provided an additional layer to this defense, O’Leary said, by arguing that it was forced to allow McCarthy carpenters to place a plywood cover over the hole because union jurisdiction boundaries on the project prevented Rock Hill employees from working with wood.
Shoulder-to-shoulder with Rock Hill in presenting this defense was McCarthy itself, which, having satisfied the full extent of its legal liability with the workers’ compensation settlement, was willing to accept full responsibility for the accident at trial rather than see it laid on Rock Hill’s shoulders, O’Leary said.
McCarthy supplied witnesses to bolster Rock Hill’s defense, among them its regional safety director and project manager for the Bodine project, both of whom testified in court that they did not intend the contract to require Rock Hill to cover the hole, and had expected the hole to be properly covered by its own employees.
Their testimony would have been more persuasive, O’Leary said, had they not testified in the exact opposite manner in depositions taken some time earlier.
“The first thing we ever heard about an informal agreement was in affidavits that Rock Hill’s attorney presented at trial,” O’Leary said. “And we had taken 25 depositions without hearing a single word about any such agreement.”
Rock Hill said that this informal agreement amounted to a “change order” modifying the contract between it and McCarthy. But Rock Hill produced no documents to support its claim that a change had been made in the contract, and many of the on-site personnel who should have been made aware of such a change later said that they knew nothing about it, he said.
Rock Hill also was hurt by an overall appearance of laxity concerning safety, O’Leary said. “They had a 144-page safety manual with 130 pages on how to cover, inspect and monitor a hole or hazard, and their foremen said he didn’t even know they had a safety manual, and had never seen it before the project,” he said. “And the two foreman that were working on the project testified that they had been working with Rock Hill for 15 years and had never been given training on safety or on OSHA regulations.”
The evidence also showed that the workers had not been provided with safety training, and that their union only began providing its members with safety training three years later, in 2000.
“One important theme of our case was that this was a company that didn’t train either its workers or its foremen when it came to safety,” O’Leary said.

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