Counsel Wins Verdict For Roofer Against Contractor Who Failed to Enforce Fall Protection Regulations

As reprinted in the Law Reporter–Spotlight
By:  Mark J. LeWinter
Date:   September 2006
Volume 49, Number 7

Urena v. Capano Homes, Inc., Del., New Castle County Super. Ct.,No. 04C-11-018-SCD, June 16, 2006.

Pablo Urena was a 22-year old roofer with limited education. Pablo had never even heard of the U.S. Occupational Safety and Health Administration (OSHA), much less its safety regulations. But he knew that working without a safety harness allowed him to work faster, and the faster he worked, the more money he made to support his wife and two young children. The contractors looked the other way, and Pablo was catastrophically injured at a work site. Pablo’s experience is an unfortunate example of what can happen when contractors exploit workers by not enforcing fall protection regulations.

Capano Homes, a general contractor, retained Rising Sun Contractors to handle the roofing and other jobs for a construction project. Rising Sun agreed to provide all materials and labor to complete the roofing project and be solely responsible for supervising its employees. Unknown to Capano Homes, Rising Sun had a contract with Hernandez, stating that Hernandez would provide all labor and tools for roofing and siding jobs that Rising Sun acquired.

Pablo had worked as a roofer for six years, working for Hernandez for the previous three years before the incident. While working on the construction project for Capano Homes, Pablo would make a slide guard by nailing several two-by-fours to the roof on which he was working to protect himself from falling. Pablo was preparing a roof for shingling, and while carrying a box of shingles across the roof, he slipped and dropped the box of shingles. The box slid down the roof and broke through one of the two-by-fours. Pablo fell and slid behind the box, falling 30 feet to the ground through the gap created by the broken two-by-four.

Pablo broke his back in two places, suffering burst fractures at L3 and L1. He also suffered a spinal cord injury and closed fracture to his right femur, requiring surgery to insert rods in his spine and leg. He continues to feel constant intractable pain in in his back, and he has no feeling in his right leg. Because of the nerve damage to his spine, Pablo suffers from cauda equine syndrome and has permanently lost the ability to control bowel, bladder, and sexual functions. His past medical expenses were about $185,300.

The attorney who represented Pablo in his workers’ compensation claim referred him to ATLA members Mark LeWinter and James Keating, both of Philadelphia, Pennsylvania; and Barry Guerke, of Dover, Delaware. They immediately conducted a thorough investigation of Capano Homes and Rising Sun. “Allowing this type of work to proceed without fall protection required by OSHA is reprehensible, inexcusable and unacceptable conduct,” says LeWinter. “Pablo’s case highlights worker exploitation and the catastrophic injury that can result when contractors continue to put profit before the people.” The investigation found that one worker had been killed while working for Rising Sun and that its owner had been sued twice for not complying with OSHA fall protection regulations.

Pablo filed suit against Rising Sun; its owner, Lee; and Capano Homes, alleging failure to provide a safe workplace and failure to comply with OSHA standards requiring the use of proper fall protection, among other allegations.

LeWinter was challenged by Delaware common law stating that an “employer of an independent contractor is not liable for injuries caused by the independent contractor’s negligence in the performance of his work.” An exception to the rule, however, provides that an owner or general contractor does owe a duty to an independent contractor’s employees when the owner or contractor voluntarily assumes responsibility for workplace safety or “retains active control over the manner in which the work is carried out and the methods used.” Pablo claimed that Rising Sun had voluntarily assumed responsibility for workplace safety by contract where it expressly agreed to assure OSHA compliance and that this responsibility was not contracted away to the subcontractor Rising Sun hired. Pablo claimed that Capano had active control because its superintendent was present at the work site and observed the roofers working without safety harnesses. The superintendent was aware that the roofers could work faster without harnesses and knew the general contractor had a financial incentive to complete projects on time. Furthermore, Capano had used another contractor before hiring Rising Sun but replaced it after the work fell behind schedule. Although Capano’s superintendent reported the roofers’ noncompliance to his superiors and to Rising Sun, nothing was ever done to ensure compliance. The strongest argument advanced by Pablo against Capano was that it was negligent in its selection of Rising Sun due to Rising Sun’s accident and litigation history.

The court ultimately granted Capano’s motion for summary judgment, finding that although Capano’s superintendent was present at the work site, Capano was not involved with the method and manner of work performed by Rising Sun’s employees. The court declined to follow precedent in the state and federal courts, which recognized a theory of negligent selection of a contractor. However, Rising Sun’s motion for summary judgment was denied.

After Capano was dismissed from the suit, LeWinter reluctantly advised Pablo to accept a tender of Rising Sun’s policy limits of $500,000, but the carrier refused, and the case went to trial.

LeWinter had difficulty obtaining complete and consistent responses from Lee throughout discovery and at trial. Lee claimed not to understand questions, and he changed his responses repeatedly. His answers during a videotaped deposition contradicted his testimony at trial. Previous lawsuits against Lee were not admissible during the trial, but LeWinter obtained other evidence during discovery to support Pablo’s claim that Lee was indifferent to his workers’ safety. Lee had safety harnesses available for subcontractors who did not have them. Pablo was never told to wear proper fall protection, however, and Rising Sun never required him to do so, even after Capano’s superintendent spoke to Rising Sun’s manager about the roofers not wearing safety harnesses. Lee was aware that Pablo did not use a safety harness and admitted he kept Hernandez and his employees on because they worked fast and did a good job.

The jury awarded Pablo $14 million. However, Pablo was found 24 percent comparatively negligent, and the award was reduced to $10.64 million. Pablo was “overwhelmed with emotion at the verdict,” says LeWinter. “Needless to say, the jury did not think much of Mr. Lee’s credibility. “

Rising Sun has moved for a new trial. After that motion is decided, LeWinter will consider appealing Capano’s grant of summary judgment.

Pablo continues to support his family, despite his injuries. “I was elated that the jury truly understood not only the catastrophic nature of the injury,” says LeWinter, “but also rewarded Pablo for demonstrating such strength of character in efforts to return to work by overcoming physical challenges that most people would find insurmountable.” Pablo now works full-time as a supervisor and is responsible for enforcing OSHA compliance and overseeing the roofing work.

“He doesn’t want to see another worker suffer like he did,” LeWinter says of Pablo. “I hope that verdicts like this one will result in increased awareness and attention to safety in the workplace to prevent other workers like Pablo from becoming horribly injured.”


Documents in this case are available through the Court Documents section in the back of this issue, courtesy of Mr. LeWinter.