$5,500,000 – Scaffold Accident Suit

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 company.

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 & 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 depositions.

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 of scaffolds.

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 found negligent.

Deasey said that after the mediation, the defendants began negotiating among themselves as well as negotiating directly with the plaintiffs.

The plaintiffs had a very good case on liability and on damages, Deasey said, but Kinder Morgan and Ponns also had very strong defenses.

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.

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