$13,000,000 – Casino Construction Accident

A crane operator who lost one leg and suffered serious injuries to the other in an accident during the initial phase of construction of the Harrah’s casino in Chester will be paid $13 million in a settlement of a suit against the general contractor and two subcontractors.

According to court papers, Timothy McGuire’s legs were crushed when another worker who was operating an aerial boom lift hit an 80 foot I-beam weighing 12,800 pounds, causing the stack of beams to domino.

McGuire, who was standing amid the beams, had 16 operations in the month after the accident. His right leg was first amputated below the knee, but doctors later had to perform an above-the-knee amputation.

In a deposition, the boom lift operator testified that he hit the beams because he had misjudged the distance between the lift and the beams.

McGuire was an employee of CMC Equipment, which had been hired to provide a crane and trained operators.

In the suit, McGuire named the general contractor, T.N. Ward, and two subcontractors hired to provide and erect the steel for the building’s frame – Samuel Grossi & Sons and its sister corporation, E&R Erectors.

In the settlement, which was struck after direct negotiations with insurance carriers, the two subcontractors agreed to pay $11 million and T.N. Ward agreed to pay $2 million.

McGuire’s lawyers – Robert J. Mongeluzzi, Larry Bendesky, Robyn L. Goldenberg, and Paul V. Bucci of Saltz Mongeluzzi Bendesky – initially demanded more than $29 million to settle the case.

Mongeluzzi said the main defense by the two subcontractors in the case was that McGuire was legally working for them under the “borrowed servant” doctrine and should therefore be limited to workers’ compensation benefits.

As a result, Mongeluzzi said, the strategy in the initial phases of the litigation was to establish that McGuire was not contributorily negligent in any way and to defeat the borrowed servant defense.

In the deposition of Joel Krol, the E&R Erectors employee who was operating the boom lift, Mongeluzzi’s first question cut to the heart of the liability issue by asking: “Do you admit you’re responsible for the September 26, 2006, accident that injured Mr. McGuire?”

Krol answered, “Yes.”

In the claim against the subcontractors, McGuire’s lawyers argued that the accident could have been prevented if the beams had been properly stored.

Evidence in the case showed that the beams were stored on their narrow rather than wide edge.

John Grossi, E&R’s corporate safety officer, testified that after the accident, E&R decided to shore and secure the beams and that the company could have braced the beams before the accident and did so afterward to make the worksite safe.

Scott Keely, E&R’s general foreman, testified that Krol failed to use proper work practices when he drove the lift into the beam and that the accident could have been avoided if Krol had used a groundsman, taken an alternative route, or made sure he had adequate clearance.

Mongeluzzi said the borrowed servant defense was effectively defeated when several E&R employees testified that McGuire, who was employed by CMC, controlled his own work and was captain of his crane.

In the claim against T.N. Ward, McGuire’s lawyers argued that the general contractor was contractually responsible for the direction and supervision of the structural steel fabrication on-site, which included overseeing the storage of the beams.

According to court papers, the contract between Harrah’s and T.N. Ward required the general contractor to provide a site safety program, and to “take all necessary precautions to ensure the safety of all persons involved in the work.”

The plaintiff’s lawyers argued that T.N. Ward’s site safety plan “failed to address material storage and the bracing of beams in an area where construction equipment, such as the high reach involved in this incident, would be operating.”

Attorney Patrick C. Lamb of Marks O’Neill O’Brien & Courtney, who represented E&R and Samuel Grossi & Sons, declined to be interviewed about the settlement.

Attorney John J. Delany III of Delany & O’Brien, who represented T.N. Ward, said his client was a “minor player” in the case, and that he was “glad that they [the McGuires] got the recovery they did.”