A carpenter on a Lehigh County courthouse project received $4 million in a settlement after a 50-foot fall that left him with fractures in his skull, ribs, pelvis, left ankle and spine and ongoing disruption to his normal functioning.
The plaintiff fell from a platform placed on the outside of the Lehigh County Courthouse, according to the plaintiffs’ papers.
Rodney Zepp and his wife, Pamela Zepp, sued Eastern Exterior Wall Systems Inc., a sibling company to Rodney Zepp’s employer that had a contract to install panels on the facade of the courthouse, over alleged violations of its safety obligations; Alvin H. Butz Inc., the construction manager; Northeast Mast Climbers Inc., which owned the platform; and Alimak-Hek Intervect USA, which was the American distributor of the foreign-made platform.
Eastern Exterior settled for $1.9 million, Alvin H. Butz Inc. settled for $1.65 million, Alimak settled for $440,000 and Northeast Mast settled for $10,000, according to the settlement agreement.
“Mr. Zepp’s fall was caused by the failures of defendants to provide a safe workplace and safe product,” the plaintiffs’ counsel said in court papers. “The mast-climbing work platform from which Mr. Zepp fell was enclosed by guardrails on three sides. On the fourth side, a fall hazard existed between the platform and the facade of the building. The manufacturer of the work platform expected that workers would place wood planks on top of tubes that extended to the facade of the building, thus eliminating the fall hazard. However, these planks needed to be removed while the platform was moving up and down the side of the building.”
Plaintiffs counsel included Robert J. Mongeluzzi, Andrew R. Duffy and Jeffrey P. Goodman of Saltz Mongeluzzi Barrett & Bendesky in Philadelphia.
The problem with these work platforms is that, when they are moved up and down, the planks have to be removed, causing open holes that construction workers fall down, Duffy said.
“We’ve handled too many mast-climbing cases where people fall through where planks should be,” Duffy said. “Workers aren’t being adequately trained.”
“Everyone was claiming the plaintiff was comparatively negligent, that he had messed up” by not using the fall protection available to him. But in a case involving both strict liability, products liability and negligence, even if Zepp had been found comparatively negligent, the plaintiff could still collect the entire claim from the product manufacturer, Mongeluzzi said.
It’s a “really good way to pit defendants against each other,” Mongeluzzi said.
The case was challenging because Zepp and one of his co-workers testified they were never trained in fall protection, but one of Zepp’s supervisors testified both employees failed to use fall-protection features, Mongeluzzi said.
The plaintiffs also had a photograph taken the day of the accident showing there was no lifeline on which workers could tie off their fall-safety equipment, Mongeluzzi said.
Jeffrey Grossman and Michelle K. Carson of Stradley Ronon Stevens & Young in Philadelphia represented Alvin H. Butz Inc. Grossman said he was not immediately authorized by his client to give a comment.
Michael A. Boomsma of Post & Schell in Lancaster represented Alimak-Hek Intervect. Boomsma confirmed the settlement but declined comment.
Mark L. Parisi and David Bronstein of White and Williams in Philadelphia represented Eastern Exterior and Duggan & Marcon Inc., which contracted with Eastern Exterior to install the panels for the curtain wall facade of the courthouse. Parisi could not be reached immediately for comment.
Bradley J. Mortensen and Barbara Magers of Christie, Pabarue, Mortensen and Young in Philadelphia represented Northeast Mast Climbers. Mortensen declined comment.
Regarding Eastern Exterior, the plaintiffs argued that its contract with the county requires “‘the contractor shall inspect portions of the project related to the contractor’s work in order to determine that such portions are in proper condition to receive subsequent work.’”
Eastern Exterior did not ensure that the workers using the platform were trained on fall-protection procedures, that they were utilizing fall protection, that they had a superintendent on-site as required by its contract with the county and that the work platform was “properly planked,” the plaintiffs’ papers said.
Regarding the construction manager, Alvin H. Butz Inc., the plaintiffs argued in their mediation memorandum that “despite undertaking the obligation to oversee and ensure a safe worksite, Butz failed to take any steps to make sure that the hazards of mast-climbing work platforms were known and guarded against. Butz’s safety director testified that Butz never performed any analysis of safety hazards on-site and Butz representatives were not competent to fulfill this responsibility.”
Butz said in its settlement conference memorandum that it served as the construction manager for the courthouse renovation and addition, but that the county held contracts with contractors and subcontractors.
Butz said Eastern Exterior designed and manufactured the panels for the curtain wall facade of the courthouse, undertook responsibility for worksite safety and contracted with defendant Duggan & Marcon to install the panels onto the building.
The construction manager also said in its papers that Alimak-Hek “manufactured” the work platforms that mechanically climbed to the point at which workers would install the panels.
Zepp was an experienced carpenter and he had used safety harnesses and safety lanyards in the past, the construction manager argued in its papers.
The construction manager also said in its papers that the Department of Labor investigation found it was not a controlling contractor, and that “Zepp had fall-protection equipment on-site, even on the platform in his own tool bucket. Moreover, Zepp likely fell through a hidden hazard, a plank he stepped upon, which was not properly supported beneath.”
At the time of the mediation, the plaintiffs’ counsel said the case was worth at least $6.75 million, and that “with the severe pain and suffering component of this case, plaintiffs anticipate a jury verdict well in excess of” the $6.75 million sum, which was the plaintiffs’ estimation of Zepp’s total economic damages.
Zepp was in a coma for 12 days after his fall, and he was not able to move off of his back for a month after the fall, the plaintiffs’ papers said.
The fall also left him with difficulties with cognition, incontinence and intimacy with his wife, the plaintiffs’ papers said. He now “requires a cane to walk, struggles to use stairs, and cannot stand for significant periods of time. He cannot control his bowels. He has poor coordination. He suffers from unbearable headaches and constant twitching and shaking. He cannot sleep. He remains awake in agonizing physical and mental pain,” the plaintiffs’ papers said.
There is a workers’ compensation lien of $264,546, the plaintiffs’ papers said.