A construction worker who fell 40 feet
when the scaffolding he was working on tipped over, sustaining
"catastrophic orthopedic, urologic and neurological injuries," will
be paid $5.5 million in a global settlement with a general
contractor, a property owner and the scaffolding supply
According to court papers, plaintiff Lazaros Hatzieftathiou was
hired to perform sandblasting on the interior of a massive storage
tank. In the fall, he suffered a broken back and extensive injuries
to his pelvis that left him permanently disabled and suffering from
lifelong erectile dysfunction.
Plaintiffs attorneys Robert J. Mongeluzzi and Andrew R. Duffy of
Saltz Mongeluzzi Barrett & Bendesky said Hatzieftathiou was
employed by Midwest Painting & Construction, which had been
hired by the general contractor, Ponns & Company Inc., to
provide sandblasting for Kinder Morgan Liquids. Midwest Painting
was not a defendant in the case.
The suit alleged that Ponns violated federal worker safety laws by
failing to ensure that the scaffolding was properly erected. The
scaffolding was erected on the floor of the storage tank - a
surface that is not rigid - but no steps were taken by Ponns to
ensure that it was level and plumb, the suit alleged.
The suit alleged that Kinder Morgan shared responsibility for the
accident because it retained control over the project and therefore
had a duty to maintain the safety of the project, and that Kinder
Morgan also failed under Restatement (Second) of Torts
Section 343 to disclose the "concealed danger" of the storage tank
floor to Ponns.
Ponns rented the scaffolding equipment from Superior Scaffold
Services, the suit said, and the scaffolding supplied by Superior
allegedly did not include "screw-jacks," the only known way to
level mobile scaffolding.
Mongeluzzi and Duffy argued in court papers that witnesses from
both Ponns and Kinder Morgan had effectively admitted liability in
Their brief claimed that a Ponns foreman who had filled out a
"scaffold safety checklist" admitted that the scaffold was not
level or plumb and the workers had not been trained in the safe use
The plaintiffs' brief also claimed that Kinder Morgan's project
manager admitted in his deposition that Kinder Morgan failed its
duties to make the project safe and failed to disclose the known
"concealed danger" of floor flex.
Mongeluzzi said the case went to arbitration before Russell Nigro,
the former Supreme Court justice, in December, but that the
settlement was not finalized until recently due to disagreements
among the defendants.
Attorney Francis J. Deasey of Deasey Mahoney & Valentini, who
represented the excess insurer for Ponns, said the case was
"extremely difficult to settle" because Kinder Morgan was taking
the position that the indemnity clause in the contract required
Ponns to indemnify Kinder Morgan even if Kinder Morgan were to be
Deasey said that after the mediation, the defendants began
negotiating among themselves as well as negotiating directly with
The plaintiffs had a very good case on liability and on damages,
Deasey said, but Kinder Morgan and Ponns also had very
Ponns, he said, was asserting a "statutory employee" defense.
Although the trial judge had refused to grant summary judgment on
the issue, Deasey said, a jury could ultimately have made findings
that would have effectively rendered Ponns immune from liability as
the plaintiff's legal employer.
Kinder Morgan's lawyer, Robert Billet of Billet & Connor, said
his client, too, had strong defenses. As the property owner, Billet
said, Kinder Morgan performed none of the work, but instead had
relied on Ponns to erect safe scaffolding.
Superior Scaffolding, which was represented by attorney Frank G.
Murphy of Frey Petrakis Deeb Blum & Murphy, contributed
$250,000 to the settlement.
The remaining $5.25 million was paid by Ponns and Kinder Morgan,
but the amounts contributed by each were not disclosed to the
plaintiffs, Mongeluzzi said.