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A $3 million settlement was reached in a Philadelphia Common Pleas Court case involving a construction worker impaled upon a piece of uncapped rebar steel. Dale Rutter, of Richland, Bucks County, was working at the Penn National Race Course in Grantville, Dauphin County, for a company installing concrete footings and a foundation on Feb. 23, 2005, according to the complaint in the lawsuit. Rutter was crossing the top of a wall with pieces of uncapped, concrete-reinforcing rebar steel protruding from it, when he slipped and fell upon the rebar, which penetrated first through his rectum and his internal organs before exiting out through his abdomen, according to court papers. The monetary portion of the settlement in Rutter v. Frank Ferrara & Sons Inc. was reached Feb. 1. Alan M. Feldman and Daniel J. Mann of Feldman Shepherd Wohlgelernter Tanner & Weinstock represented Rutter. Elizabeth Horneff of Margolis Edelstein represented defendant Frank Ferrara & Sons. The rest of the settlement terms are still being formalized, Mann said. Rutter, then 33, sustained injuries to his colon, rectum, sphincter and buttocks, which required multiple surgical procedures, according to court papers. Rutter also has needed surgery to his left arm because of a nerve injury. Rutter said the accident had left him incontinent and with feelings of shame about his incontinence, according to his Aug. 8, 2007, deposition, which was submitted into the court record as part of the defendants’ motion for summary judgment. Rutter said his doctors indicated that current science couldn’t do more to reconstruct his sphincter and restore muscular control over his continence, according to his deposition. “We were pleased with the recovery,” Mann said. “Dale suffered a horrible injury. We’re just happy that this money is going to help take care of him for the rest of his life. There’s really no amount of compensation, given his injuries, that could put him back together.” The plaintiffs argued that Penn National general contractor, Frank Ferrara & Sons, based in West Lawn, failed to cap the rebar with protective pieces of plastic in order to protect its workers from injuries during falls. “All defendants knew or should have known that falls are among the leading causes of fatalities and injures at construction sties,” the complaint said. The general contractor should have followed federal Occupational Safety and Health Administration regulations requiring that all reinforcement rebar steel should be guarded to eliminate impalement injuries, according to the plaintiffs’ memorandum of law in response to the defendants’ motion for summary judgment. The little orange pieces of protective plastic caps are a “very inexpensive way to protect against precisely this injury,” Mann said. “It takes no time to install. It takes literally a second to place a cap on top of a rebar.” In an unsuccessful motion for summary judgment, Frank Ferrara & Sons argued that it was not vicariously liable for the negligence of concrete and foundation work performed by its subcontractor, Latshaw Brothers, based on an oral contract and that Latshaw was responsible for affixing caps to the rebar. Rutter was employed for seven years with subcontractor Latshaw Brothers, setting up forms and pouring concrete to make footers for houses, according to Rutter’s deposition. Ferrara also argued that it was a statutory employer entitled to immunity under the Pennsylvania Workers’ Compensation Act, including that it had an agreement with Penn National Gaming Inc. that “can be inferred from the circumstances.” During his deposition on Sept. 10, 2007, Frank Ferrara, president of Frank Ferrara & Sons, said that the uncapped steel was an OSHA violation that should have been addressed either by Ferrara or Latshaw personnel. Ferrara’s defense motion noted that the company did not have a formal written contract with Penn National Gaming because the project’s scope of work was hard to identify due to pending legislation to allow slot machines at the racetracks, and Penn National Gaming felt “the legislation not passing made it difficult for the parties to determine what risk they were willing to take and to create a contract.” The plaintiffs replied in their papers that there was no contract between Ferrara and Penn National Gaming, or between Ferrara and Latshaw; that Ferrara maintained the safety condition at the site; that Ferrara didn’t control Latshaw employees and that it didn’t regularly perform concrete work – all reasons that led to Ferrara being disqualified as a statutory employer. “It was clear Ferrara was the entity that had safety responsibility,” Mann said. Rutter said he had only been at the Penn National Gaming project for an hour or two, helping to strip wall forms off the wall, when he fell, according to his deposition. Rutter, who has a 21-year-old and a 17-year-old son with his wife, Michelle, sought damages because of his injury, and his wife sought damages in a loss of consortium claim. The settlement maxed out Ferrara’s policy limit with Erie Insurance, Mann said. The rest of the defendants in the case, Ewing Cole Inc., Penn National Race Course, Pennsylvania National Turf Club Inc. and Penn National Gaming Inc., were all dismissed earlier. Horneff did not respond to a request for an interview.

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