A construction worker who was paralyzed after falling off scaffolding has settled with the building owners, the scaffold manufacturer and others for a total of $6.5 million.
In Cevallos v. Bil-Jax, according to the plaintiff’s mediation memorandum, plaintiff Jose Cevallos was working on a project to expand a building in Philadelphia owned by defendant Coast to Coast and its principal, defendant Luigi Adamo, by adding a third and fourth story.
Cevallos’ job was to fasten the joists to the structural beams, requiring him to work at significant heights, according to the plaintiff’s memorandum.
On Nov. 9, 2011, the plaintiff’s memorandum alleged, the fall protection Cevallos was using was not in compliance with either American National Standards Institute or Occupational Safety and Health Administration standards.
According to the plaintiff’s memorandum, the straps Cevallos tied off with were actually made to haul cargo and were not intended as safety devices. The strap was also tied to an overhead beam that was not a suitable anchor-point, the plaintiff’s memorandum said.
On the day of his fall, Cevallos climbed a scaffold manufactured by defendant Bil-Jax Inc. and purchased from defendants Diamond Tool or Moulton Ladder & Supply Co., according to the plaintiff’s memorandum.
The scaffold did not have guardrails, de-spite Bil-Jax’s recommendation that guardrails be used, the plaintiff’s memorandum alleged. “Neither Moulton Ladder nor Diamond Tool provided any instruction to the purchasers or end users regarding the use of guardrails and requirements for the use of guardrails with respect to the subject Bil-Jax scaffold,” the plaintiff’s memorandum said. “None of the defendants communicated Bil-Jax’s recommendation that guardrails be used when working at any height.”
According to the plaintiff’s memorandum, a joist that had been propped up by another worker fell and landed on Cevallos’ harness straps, pulling him off the scaffold and onto the floor. Cevallos landed on his back, crushing bones in his thoracic spine and compressing his spinal cord, according to the plaintiff’s memorandum. Cevallos is now paralyzed, the plaintiff’s memorandum said. Because of the height at which Cevallos had been working, according to the plaintiff’s memorandum, he was forced to remain on his back for two hours before paramedics could move him.
Cevallos was then rushed to Thomas Jefferson Hospital, where doctors performed two surgeries to try to repair his spine that same day, according to the plaintiff’s memorandum. The plaintiff’s memorandum said Cevallos is still paralyzed and now suffers from mid-back pain that radiates throughout his abdomen and causes a burning sensation in his tailbone and the soles of his feet.
Cevallos now requires catheterization five times a day and suffers from bowel incontinence, according to the plaintiff’s memorandum. Dr. Gene Z. Salkind, the plaintiff’s neurosurgery expert, said Cevallos will need periodic physical and occupational therapy throughout his lifetime, according to the plaintiff’s memorandum.
According to the plaintiff’s memorandum, Coast to Coast and Adamo were liable for Cevallos’ injuries because they hired all the subcontractors on the job and it was Adamo who directly controlled all aspects of the project, despite have no training or qualifications to do so.
The plaintiff’s memorandum said Adamo had attempted to hire Thomas Cole Group as a general contractor on the project, but the contract was terminated “due to insurance issues” before any work was performed.
Adamo testified at deposition that he then hired another general contractor named Adler DaSilva, but DaSilva denied in his own deposition that he was ever contracted to oversee the project, according to the plaintiff’s memorandum.
Coast to Coast and Adamo’s OSHA safety expert, Wendell D. Rust, however, opined in a report that Adamo “made a reasonable effort to have the Coast to Coast building renovated in a responsible manner” by hiring a professional construction manager to oversee the project.
Rust also said in his report that Cevallos’ injuries were not caused by a defect in the scaffolding and that it was Cevallos’ decision to use the straps, which had been intended to secure the walls of the structure on a windy day, as a harness.
In addition, Paul L. Dreyer, Coast to Coast and Adamo’s forensic consulting expert, said in his own report that guardrails were not required to be used on the scaffolding at issue because it was only six feet high and OSHA does not require guardrails on scaffolding that is less than 10 feet high.
The plaintiff’s memorandum said Bil-Jax, Diamond Tool and Moulton Ladder were liable for failing both to provide guardrails and to warn the users of the scaffolding that guardrails were recommended by the manufacturer when used at great heights.
Diamond Tool argued in its motion for summary judgment that it could not have sold the scaffolding at issue because it did not sell Bil-Jax brand scaffolding during the relevant time period.
Moulton Ladder, meanwhile, argued in its own motion for summary judgment that any evidence that it sold the scaffolding in question was purely speculative and that, regardless, there existed no evidence that it failed to either warn of a need for a guardrail or offer a guardrail.
Bil-Jax argued in its answer to the com-plaint that if its scaffolding was in fact at issue in the case, it “may have been subjected to improper, abnormal, unforeseeable and/or unintended use and/or abuse or misuse after the product left the care, custody and control” of Bil-Jax.
Defendant Adler Construction-DaSilva’s company-which the plaintiff’s initial complaint had alleged was negligent as a general contractor on the project, argued in its preliminary objections that the plaintiff had failed to state a claim against it. Ultimately, Cevallos settled in mediation with Coast to Coast and Adamo for $5.45 million, Bil-Jax for $500,000, Moulton Ladder for $500,000, Diamond Tool for $25,000 and Adler for $25,000, according to plaintiffs counsel.
Counsel for Cevallos, Robert J. Mongeluzzi of Saltz Mongeluzzi & Bendesky in Philadelphia, who handled the case with partner Ara R. Avrigian, said he felt their client’s case was helped by the fact that they were able to obtain progress photos of the construction project that clearly showed OSHA violations.
Mongeluzzi said he and Avrigian also conducted extensive depositions. “A case like this is won and lost typically in deposition rooms, not courtrooms,” Mongeluzzi said. “We found in these construction cases that comprehensive depositions of everybody involved in the process is necessary, that included the construction workers, superintendents, the owners, representatives from [Licenses and Inspections], engineers, architects, corporate designees of outside companies that had records.”
Counsel for Coast to Coast and Adamo, Daniel J. Rucket of Rawle & Henderson in Philadelphia, could not be reached for comment at press time. Counsel for Bil-Jax, Stephen D. Menard of Trabucco & Menard in King of Prussia, Pa.; counsel for Moulton Ladder, Louis E. Bricklin of Bennett, Bricklin & Saltzburg in Philadelphia; and counsel for Adler, Kim R. Plouffe of German, Gallagher & Murtagh in Philadelphia, also could not be reached. Counsel for Diamond Tool, Michael J. Dunn of Philadelphia, said his client “paid a nominal sum to achieve a global settlement and there was no evidence indicating that we had supplied the scaffolding at issue.”