A painter who suffered severe brain damage after a more than 100-foot fall off of a transmission pole received a $6.7 million settlement from PECO Energy and three codefendants.
Michael Mitchell of Moundsville, W.Va., suffered massive injuries due to the negligence of PECO and three manufactures, according to his attorney, Robert Mongeluzzi of Saltz Mongeluzzi & Barrett. Rather than installing a permanent ladder with built-in fall protection Mongeluzzi said PECO decided to cut costs by using portable ladder sections that were both unstable and illegal for use on such work.
There should have been a lifeline so that when he ascended or descended, he would have been protected, “Mongeluzzi said yesterday, after reaching a settlement agreement on Friday with the four defendants during a mediation conference. “No one should climb more than 25 feet without 100 percent fall protection. He kept on having to unhook the lanyard he was using to move to the next section. That’s just not safe.”
On May 13, 1994, Mitchell was working as a painter on a 164-foot transmission pole in Eddystone. Supplied with a safety belt and lanyard, Mitchell gained access by climbing a main ladder column composed of four sections of single rail ladders erected by PECO several weeks before so its workers could perform electrical work at the top of the pole. After a lunch break, Mitchell fell approximately 102 feet, causing multiple fractures, internal injuries, and a “catastrophic” brain injury.
According to Mongeluzzi, his client has severely impaired memory, diminished problem-solving ability, diminished ability of expression, wild personality changes, and has attempted suicide several times. Mitchell also suffers from constant ringing in his left ear, and he has lost his sense of smell and taste completely, Mongeluzzi said.
PECO, the owner of the site, and Carnco, who was alleged to be Mitchell’s employer, together agreed to pay $2 million in damages, while PECO alone paid $3.35 million in excess of that figure. The two ladder manufacturers, McGregor
Architectural Iron Inc. and Thomas and Betz Inc., paid $650,000 and $200,000 respectively, and the fabricator of the pole, Valmont, paid $500,000, Mongeluzzi said.
PECO was represented by Jonathan Herbst and Leonard Lipson of Margolis Edelstein. Lipson noted in a telephone interview yesterday that the $6.7 million settlement “looks like a lot of money, but you’ve got to remember that the plaintiffs initial demand was $15 million. These injuries were very serious.”
“After mediation that lasted almost a whole day, that demand was reduced considerably,” Lipson continued. “There wasn’t enough evidence to support his initial demand.”
Mongeluzzi cited statements made by PECO’s painting inspector at the site, Rich Shambor. According to Mongeluzzi, Shambor described his job as ensuring the work performed complied with specifications – except safety specifications set by OSHA. Shambor, he said, testified that he was specifically told by his superior not to inspect for safety.
“That was the most damning evidence from the plaintiffs perspective because it showed that PECO was more concerned about the color and thickness of the paint than the safety of the men and women working on their system.”
The two manufacturers supplied PECO with the portable ladder sections, McGregor and Thomas and Betts. All of the McGregor ladders contain interlocks so that the sections can nest together for structural support. None of the Thomas and Betts ladders had such a feature.
Photographs taken immediately after the accident show that both kinds of ladder sections were in use on the pole where the accident occurred, Mongeluzzi said.
The sections are designed to be secured with special screws that Mongeluzzi claims PECO failed to install onto the pole Mitchell climbed. Because the screws were not used, he said, the pole wobbled two to three inches from side to side.
The Occupational Safety & Health Administration mandates that the steel ladder used by PECO should be covered with non-slip material, but Mongeluzzi said they were not. He said they also failed to meet OSHA requirements concerning step spacing.
In addition, he said OSHA prohibits the use of single rail ladders for construction purposes. Mongeluzzi claims PECO had proper, permanent ladders with steps for each foot at every level instead of alternating ones.
“It is painfully obvious that PECO installed climbing ladders so that its own employees could climb to the pole several weeks earlier and merely lee these on rather than going through the expense of removing them and replacing them with working ladders,” Mongeluzzi contended. “PECO, therefore, supplied illegal ladder sections to Mitchell to save several hundred dollars of employee time.”
Mongeluzzi presented several theories of potential liability against PECO, including its right to inspect and control the work site, and its responsibility for designing and supplying the ladders and climbing equipment.
In addition, he argued that PECO negligently selected a contractor, Camco, without checking into the company’s safety record. PECO was also potentially responsible under the peculiar risk doctrine for supplying ladders that had been outlawed in Pennsylvania, Mongeluzzi said.