Worker Who Fell From Roof Settles OSHA Workplace Safety Rules Violation Case for $2.160 Million
Worker Who Fell From Roof Settles OSHA Workplace Safety Rules Violation Case for $2.160 Million; Expert Analysis Concludes Developer Violated Basic Workers Safety Rules Which Endangered Workers and Others Who Come in or Near Construction Sites
This was a construction injury OSHA safety rules violation case wherein plaintiff sustained serious and permanent injuries. On or about December 18, 2007, cold and icy day, at approximately 6:00 p.m., plaintiff was working as a roofer on a dangerous, OSHA non-compliant construction site located at Nutley Village, 174 Bloomfield Avenue, Nutley, New Jersey. While working, plaintiff was caused to fall from the unsafe roof. As a result of the fall, plaintiff sustained severe and permanent injuries.
At the time of the incident, Plaintiff was installing roof shingles on a commercial building owned by a developer. This developer owned two development companies, Eagle Land Consultants, LLC (“Eagle Land Consultants”) and Eagle Land Construction, LLC (“Eagle Land Construction”) Eagle Land Consultants. Defendant developer designated defendant Eagle Land Consultants as the owner/developer entity of the project and defendant Eagle Land Construction as the general contractor of the project. The total cost of the project was $2-$3 million.
In the United States, about a million workers have been killed on-the-job since the 1920’s.1 Responding to government statistics suggesting that 14,000 Americans are killed and 2.5 million permanently injured in the workplace every year2, the United States Congress passed the Occupational Safety and Health Act of 1970 (“OSHA”) “to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources.” New Jersey has incorporated OSHA and its accident prevention principles into its statutory law via the UCC and its extensive body of workplace safety case law.
OSHA and New Jersey law rest on the bedrock principle that safety begins at the top, to wit, a general contractor/construction manager on a work site has a non-delegable duty to maintain a safe workplace that includes “ensur[ing] ‘prospective and continuing compliance’ with the legislatively imposed non-delegable obligation to all employees on the job site, without regard to contractual or employer obligations.” Alloway v. Bradlees Inc., 157 N.J. 221, 237-38 (1999), citing, Kane v. Hartz Mountain, 278 N.J.Super. 129, 142-43 (App. Div. 1994). As a matter of public policy and federal law, the general contractor is the single repository of responsibility for the safety of all employees on the job. As such, the general contractor bears responsibility for all OSHA violations on the job site. Meder v. Resorts International, 240 N.J.Super. 470, 473-77 (App. Div. 1989), cert. den. 121 N.J. 608; Kane, 278 N.J.Super. at 142-43; Dawson v. Bunker Hill Plaza Assocs., 289 N.J.Super. 309, 320-21 (App.Div.1996).
OSHA is supposed to be enforced from the top down. It is undisputed that Eagle Land Construction was the general contractor on the jobsite. As such, it had a non-delegable duty to ensure that OSHA regulations were enforced on the jobsite. Despite this Eagle Land Construction allegedly did nothing to ensure that OSHA was followed, particularly concerning fall protection for the workers. As such, it is clearly foreseeable that an untrained laborer, such as Plaintiff, directed to work on an OSHA non-compliant major construction project on a roof some 15 to 30+ feet high unprotected with no harness, lanyard, toe boards, nets or other fall protection can foreseeably result in a fall injury of the type suffered.
As to the owner/developer defendants Eagle Land Consultants, while a landowner who hires a general contractor is generally not responsible for the negligent acts of that contractor. Mavrikidis v. Petullo, 153 N.J. 117, 131 (1998); Majestic Realty Associates v. Toti Contracting Co., 30 N.J. 425, 430-431 (1959); Dawson v. Bunker Hill Plaza Assocs., 289 N.J. Super. 309, 318 (App.Div. 1996). There are, however, three exceptions to this general rule: (1) where the principal retains control of the manner and means of doing the work subject to the contract; (2) where the principal engages an incompetent contractor; or (3) where the activity constitutes a nuisance per se. Majestic Realty, 289 N.J.Super. at 430-431; Dawson, 289 N.J. Super. at 318. Under the second exception, a principal may be held liable for injury caused by its independent contractor where the principal hires an incompetent contractor. As the Appellate Division explained in the Majestic case, “[t]he gravamen of th[is] exception is selection of a contractor who is incompetent.” Id.; Mavrikidis, 153 N.J. at 136. Accordingly, a landowner will not escape liability if he engages an incompetent contractor. Majestic Realty, 289 N.J.Super. at 430-431; Dawson, 289 N.J. Super. at 318; Cassano v. Aschoff, 226 N.J. Super. 110, 113 (App. Div. 1988). In the instant matter Eagle Land Consultants hired an OSHA and safety incompetent contractor, Eagle Land Construction. In turn, Eagle Land Construction hired safety incompetent subcontractors, such as NJ Siding, Inc., who ultimately hired A&A Construction, believed to be plaintiff’s employer.
Defendants allegedly violated federal and New Jersey law on this job site in that OSHA enforcement was completely non-existent and there was absolutely no safety management.
Plaintiff fell from the roof he was working on and lost consciousness after the fall. Upon arrival of paramedics, Plaintiff was found bleeding from his nose, unconscious, with a fractured left wrist and left temporal head deformity. He was immediately transferred to University Hospital (UMDNJ) in Newark, New Jersey. Plaintiff was conscious upon arrival to the emergency room, and was agitated, requiring paralysis and intubation. His severe injuries consisted of the following:
Multiple ecchymosis throughout his face consistent with facial fractures and a depressed skull fracture
Obvious left shoulder dislocation;
Obvious left open distal wrist comminuted fracture; and
- Left proximal fibula fracture.
The following imaging studies were conducted with the following results:
CT Scan of head: traumatic brain injury: Left frontal fracture with an epidural hematoma;
CT Scan of face: Fractures of the right maxillary sinus and left orbital wall with lateral rectus impingement;
CT Scan of chest, abdomen and pelvis: Bilateral pulmonary contusions;
CT Scan of left shoulder:Hill-Sachs deformity, bony Bankart deformity, nondisplaced coracoid and acromial fractures;
CT Scan head – Follow up: Hemorrhage exists in left frontal lobe; craniotomy defect noted with air just below craniotomy site in the frontal and in the left temporal lobes; subdural collection noted in the right temporal fossa anteriorly;
X-Ray of left wrist: left distal wrist fracture; and
- X-Ray of left fibula: Left proximal fibula fracture.
Plaintiff was seen in consultation by Ophthalmology, Neurosurgery, Oral and maxillofacial surgery and Orthopedic Surgery. He had a bolt placed to measure the intracranial pressure and a repeat Ct Scan of the head showed further enlargement of his epidural hematoma. It was immediately determined that Plaintiff would remain in the hospital approximately 3 to 4 weeks and then proceed with rehabilitation.
Plaintiff underwent the following surgical procedures:
December 18, 2007:
Intracranial pressure monitor placement; and
- External fixation of the left open distal radial fracture and incision and drainage;
December 20, 2007: Emergent craniotomy and evacuation of left frontal epidural hematoma and elevation of skull fracture;
December 21, 2007: Open reduction and internal fixation of left distal ulnar fracture and revision of external fixation of left distal radial fracture;
December 27, 2007: Open reduction and internal fixation of the left distal radius fracture and adjustment of external fixator;
- December 31, 2007: Incision and drainage of the left wrist with skin graft to open wound.
During his hospitalization, Plaintiff was administered the following medications:
- Cerebyx, Bacitracin, Fentanyl, Diprivan, Sublimaze, Xylocaine, Ancef, Unipen, Pepcid, Osmitrol, Peridex, Novolin-R, Lacri-Lube, Colace, Senokot, Protonix, Inderal, Desyrel, Valium, Lovenox, Neutra-Phos, Dilantin, Desyrel, MS Contin, Percocet, K-Dur, Osmitrol, Symmetrel, Seroquel, Vancocin, Oxycontin, Roxicodone, Reglan, Ritalin, Aricept.
Plaintiff was discharged from University Hospital on January 11, 2008. Plaintiffs’ final diagnoses were as follows:
Status post fall from roof approximately 25 feet to concrete floor with positive loss of consciousness;
Depressed frontal skull fracture;
Left frontal epidural hematoma;
Right maxillary fracture;
Left orbital roof fracture with impingement on lateral rectus muscle;
Bilateral pulmonary contusion;
Left shoulder dislocation;
Left proximal fibular fracture;
Left inferior glenoid fracture; and
- Traumatic brain injury.
Upon being discharged, Plaintiff was instructed to follow up with Dr. Yonclas for rehabilitation, neurology consultations at the Brain Injury Clinic, Ophthalmology, and with Dr. Liporace, in Orthopedics.
On January 28, 2008, Plaintiff had a follow up consultation with Dr. Frank A. Liporace at UMDNJ. The removal of the external fixation on his left forearm under anesthesia was scheduled for February 5, 2008.
On February 5, 2008, Plaintiff underwent a removal of external fixator of left wrist and examination under anesthesia. Plaintiffs’ pre-operative diagnosis and post-operative diagnosis were left distal radius fracture status open reduction and internal fixation and external fixation. Dr. Frank Liporace, notes that on examination under anesthesia, the wrist and elbow were stiff, range of motion at the elbow was from 5 degrees to 100 degrees and the wrist had minimal range of motion. Fracture was not completely healed and removal of hardware was not performed. The in the future would require removal of hardware as well as soft tissue release to improve range of motion.
On February 25, 2008, Plaintiff had a postoperative follow up appointment with Dr. Liporace. Upon examination, Dr. Liporace indicated that Plaintiff had severely decreased range of motion of the fingers, hands and wrist, as well as, slightly decreases sensation in the median nerve distribution. Dr. Liporace recommended that Plaintiff undergo occupational therapy to improve the range of motion of the left elbow, wrist and hand.
Plaintiff attended occupational therapy at UMDNJ under the care of Mahalia P. Solis. Sessions began on or about March 7, 2008. Upon evaluation, it was noted that Plaintiff could not move his left fingers and rated the pain as a 7/10 with PROM. The initial plan of treatment consisted of active range of motion exercises, instructions on home exercise programs, scar management, and modalities as needed twice per week for approximately 8 weeks. The scars of Plaintiffs’ left upper extremities were the following:
- 4.5cm radial side of L forearm;
- 7.7cm on dorsal side of L forearm from dorsum of wrist to disal forearm;
- 3cm over 2nd metacarpal bone;
- 12cm along ulnar side of L forearm;
- 3.5cm CTR scar; and
- 6cm to distal forearm on volar side.
Plaintiff continued attending his occupational therapy until April 30, 2008, and discontinued it due to being hospitalized for approximately 7 weeks. He resumed occupational therapy on July 9, 2008, and underwent therapy three times per week for 6 weeks. During the evaluation, Plaintiff was experiencing severe stiffness to the left fingers, decreased AROM to left fingers, wrist and forearm, and complained of pain during motion. He was discharged from the occupational therapy program on August 7, 2008, and was instructed to continue therapy at a location closer to his home.
As such, Plaintiff began a new plan of occupational therapy at Jersey Shore University Medical Center on August 12, 2008. The plan consisted of paraffin, manual treatment, range of motion exercises, and functional activities. Therapy continued 2-3 times per week until October 15, 2008.
On March 14, 2008, Plaintiff visited Dr. Susan Garstang, of UMDNJ, with complaints of Diplopia or double vision with either superior or inferior vertical gaze and a sense of left eye fatigue while watching television. Additionally, he was experiencing memory deficit in the setting of traumatic brain injury, as well as, a decrease in function of the left hand. For the memory loss, Plaintiff was prescribed Ritalin 5mg and referred to Speech therapy for cognitive rehabilitation. Additionally, he was referred to Neuro Opthmology and instructed to undergo an EMG evaluation.
On April 8, 2008, Plaintiff presented to UMDNJ’s NeuroSurgery Clinic with Charles Prestigiacomo, M.D. Complaints consisted of severe headaches rated as an 8 on a pain scale and swelling of left side of head with blurry vision. The assessment revealed encephalomalacial changes in the left frontal headache. Plaintiff was instructed to follow up with Neuro-ophthalmology, take Tylenol fo the headaches and follow up again in 3 months.
On April 30, 2008, Plaintiff returned to the Emergency Room at UMDNJ complaining of severe dizziness, headaches, swelling of the head, pain on a bump on the left side of the head, and a purulent discharge from his forehead. He underwent a CT Scan of the head which showed the following: 1. encephalomalacia in the left frontal temporal lobes with increased density consistent with epidural infection and cerebral abscess; and 2. Fluid vs. fibrosis protruding through the right margin of the craniotomy flap.
On May 1, 2008, Plaintiff had another CT Scan of the head to compare the results from the previous test taken a day before. Again, the impression consisted of cerebral abscess, epidural infection, sinusitis and subcutaneous infection. A ring-enhancing lesion was also found in the left frontal lobe, measuring 10 x 9 mm. Plaintiff was referred for an MRI, which took place a few hours later on this same day. At this time, he was admitted to UMDNJ. An MRI of the Brain conducted found increased T2 signal intensity and enhancement in the subcutaneous tissues of the left frontal scalp, compatible with cellulitis and left frontal lobe parenchymal abscess with adjacent pachymeningitis and cerebritis.
Plaintiff was immediately taken to the operating room where he underwent a left frontal craniotomy and craniectomy, duraplasty repair of skull base, sinus repair and cranioplasty.
Plaintiff underwent the following diagnostic exams:
May 6, 08- 5 mm axial images were obtained from the base of the skull to the vertex. Findings showed: New subdural fluid collection over left convexity with increased shift and effacement of cisterns.
May 7, 08- 5 mm axial images obtained from the base of the skull to the vertex to compare to 5/6/08 exam. Findings showed: increasing edema related to left frontal surgical bed with increasing mass-effect. New enhancing subgaleal collection, which was infected.
May 8, 08- MRI of the brain and MRV of the head and neck were obtained. Impressions were as follows: Postoperative changes with peripheral enhancing collection within the surgical bed with extensive surrounding edema extending across the genu of corpus callosum. Due to the extensive edema, superimposed infection was considered. There was also a peripherally enhancing left subgaleal collection.
- May 13, 08- 5 mm axial images obtained from the base of the skull to the vertex to compare to 5/8/08 exam: Findings showed:Persistent left frontal extra-axial collection and inferior left frontal collection. Extensive left frontal and temporal edema with no change in mass-effect upon the frontal horns of the lateral ventricles and midline shift.
Plaintiff was discharged from UMDNJ on June 14, 2008.
On or about May 1, 2009, Plaintiff suffered a first time epileptic seizure and was taken to Jersey Shore University Medical Center. A CAT scan of the head showed changes in the left frontal lobe consistent with his past surgery. The diagnoses at admission were;
- Gerneralized tonic-clonic seizure, new onset; and
- left upper extremity pain likely secondary to fall and past surgery on the left arm.
Plaintiff was started on Keppra 500 mg q.8 h for seizure prophylaxis and Dilantin 300 mg on a daily basis. He was discharged and instructed to follow up for EEG results.
On December 29, 2010, Plaintiff was examined by Dr. Nazar H. Haidri, M.D. Dr. Haidri concluded that as a direct and proximate result of the December 18, 2007 incident, Plaintiff sustained the following injuries:
- Status post cerebral concussion; post traumatic headaches and cognitive dysfunction; status post fracture skull, orbit and maxilla; status post intraparenchymal, subdural and epidural hematoma; status post evacuation of epidural hematoma; status post abscess and epidural infection; post left frontal craniotomy, hemicraniectomy with duraplasty, repair of skull base, sinus repair, and cranioplasty; status post fracture and dislocation of left shoulder; status post fracture of the left radius and left ulna; status post surgery left radius and ulna; status post fracture of left fibula; and post traumatic seizure; and abnormal EEG compatible with seizure focus.
Moreover, Dr. Haidri concluded that Plaintiff’s injuries are permanent in nature. Dr. Haidri opined that Plaintiff will need to be evaluated by a neuro-psychologist and continuing neurological care and cognitive therapy.
On January 21, 2011, Chirag D. Gandhi, M.D. concluded that as a direct and proximate result of the December 17, 2008 incident, Plaintiff sustained traumatic brain injury requiring the following neurosurgical interventions:
Placement of right frontal intracranial pressure monitor;
Left frontal craniotomy, evacuation of epidural hematoma, elevation of comminuted fracture and cranial reconstruction; and
- Revision left frontal craniotomy, evacuation of intraparenchymal abscess and cranialization of frontal sinus and cranioplasty with abdominal fat graft.
Dr. Ghandi concluded that Plaintiff’s injuries are permanent in nature. Dr. Ghandi opined that Plaintiff will need additional neurosurgical evaluation to re-image his intracranial space and resolution of the intraparenchymal infection, as well as, the efficacy of the cranial and sinus reconstruction. Accordingly, Plaintiff will need yearly neurosurgical follow up and cognitive therapy for maximal recovery from the traumatic brain injury.
On February 8, 2011, Plaintiff was examined by Dr. Lance A. Markbreiter, M.D. of the Shore Orthopaedic Group. Dr. Markbreiter concluded that Plaintiff suffered from left shoulder dislocation with fracture of the caracoid and acromion and a Bankart, glenoid, laberal injury; severe comminuted open distal radius fracture requiring extensive surgical treatment; extensive left distal ulnar fracture requiring extensive surgical treatment; and carpal tunnel release as a result of the December 18, 2007 incident. According to Dr. Markbreiter:
- With a reasonable degree of medical probability the patient will require future surgical intervention over his lifetime. The costs for further neurosurgical and orthopaedic intervention over his lifetime is an approximate projected cost in 2011 dollars of $100,000.00.
Dr. Markbreiter concluded that Plaintiff’s injuries are permanent in nature and a a direct and proximate result of the December 18, 2007 incident.
At the time of the incident, Plaintiff was employed by A&A Construction as a roofer/laborer earning approximately, $500.00-$1,000.00 per week. As a result of the injuries sustained in this incident, Plaintiff has been unable to return to work at his pre-accident capacity. His present physical condition is such that it is unlikely he will ever be able to return to full time construction work like before. The records showed a significant earnings loss.
Plaintiff also incurred significant past medical bills. Future medical care to treat Plaintiff’s injuries from this incident will likely include ongoing medical care, psychological support, medications/equipment/supplies, support services- homemaker, transportation, case management and future neurological and orthopaedic intervention. Plaintiff’s life expectancy is 33.8 years according to the New Jersey Court Rules, life expectancies for all races and both sexes. The anticipated costs of care annually, and for the remainder of Plaintiff’s life are significant.
Additionally,Plaintiff will require future neurological and orthopaedic surgical intervention. The approximate cost for the neurological and orthopaedic intervention is significant.
Plaintiff continues to suffer the long term residual effects of his severe and permanent injuries. He has not been able to return to the same kind of work since the date of the accident. Plaintiff is a husband and the father of 5 children ranging from ages 6-21, all of whom received monetary support from Plaintiff. Since the accident, Plaintiff has not been able to support his family like before forcing two of his children to stop attending their university in order to work and support their family. His severe physical injuries have prevented him from full use of his left hand as he cannot make a fist and has difficulty bending at the wrist. As a result, he cannot do heavy lifting. Same prevents him from finding work like before. Additionally, Plaintiff now suffers from hearing loss, vision impairment of the left eye and epileptic seizures for which he now receives treatment. Plaintiff also suffers from memory loss and forgets names.
Plaintiff sustained multiple severe injuries as a result of this fall.
After significant litigation standing up for the rights of this plaintiff, the Clark Law Firm, PC achieved a total settlement of $2.160 million. The plaintiff received just compensation for the injuries stemming from these safety rule violations. It is also hoped that by pursuing these rights, these defendants, and other developers will be deterred from needlessly endangering workers and others who come in or near construction sites in the future.
1 Linder, Marc. Fatal Subtraction: Statistical MIAs on the Industrial Battlefield. 20 J. Legis. 99 (1994).
2 Linder, 20 J. Legis. 99. See Also Getting Away with Murder: Federal OSHA Preemption of State Criminal Prosectuions for Industrial Accidents. 101 Harv. L. Rev. 535 (1987).