Articles Posted in Construction Injuries

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Shannon Brown sued the Burlington Northern Santa Fe Railway Co. under the Federal Employers’ Liability Act, 45 U.S.C. Section 51, et seq. Brown started as a laborer and worked his way to foreman, track inspector and machine operator by 2009.

In 2007, he was diagnosed with carpal tunnel syndrome in both wrists and cubital tunnel syndrome of the left elbow. In October 2007, Brown suffered a right shoulder injury but was pain-free in December 2007. In 2007 and 2008, Brown had carpal tunnel surgery to both of his wrists. In 2009, he underwent surgery on his left elbow. In January 2010, Brown returned to work without any medical restrictions. In September 2011, he left his employment at the railroad.

Brown filed a lawsuit in 2009 claiming that the cumulative trauma caused his wrists, elbow and shoulder injuries. During discovery, Brown hired Dr. David Fletcher to serve as his expert witness to give his medical opinion that the railroad caused his injuries. Dr. Fletcher graduated from Rush Medical College in Chicago, obtained a master’s degree in public health and was a fellow in the American College of Occupational and Environmental Medicine. He was also an assistant professor at the University of Illinois and one of two doctors serving on the Illinois Workers’ Compensation Commission.

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Robert Lodholtz was seriously injured in 2011 while working at a plant owned by Pulliam Enterprises in Indiana. Lodholtz filed a personal-injury lawsuit against Pulliam in the Indiana state court. Pulliam called on Granite State Insurance Co., its primary liability insurer, along with New Hampshire Insurance Co., to defend and indemnify it against the lawsuit.

Granite State refused to indemnify Pulliam stating that Lodholtz as an employee should pursue his claim for worker’s compensation. Lodholtz disagreed arguing that he was employed by another company while he worked at Pulliam’s plant and therefore had no basis for a worker’s compensation claim.

Pulliam chose not to file an answer to the complaint, so Lodholtz moved for default judgment, which was granted. Lodholtz then agreed with Pulliam not to pursue the default judgment and in return Pulliam assigned to Lodholtz its rights against Granite State. Granite State then moved to intervene in Lodholtz’s lawsuit. The Indiana state court denied the motion to intervene.

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On April 27, 2009, Daniel Fleck, a union sprinkler fitter employed by Global Fire Protection, was working at the Ogilvie Transportation Center in Chicago. This work occurred during the MetraMarket construction project that was under way on the lower level. Fleck was 39 years old at the time. The construction project was headed by general contractor defendant, O’Neil Construction Co. The Ogilvie Transportation Center is located at 118 N. Canal Street in Chicago.

Fleck contended that he injured his lower back while he attempted to lift and install a 110-pound dry pipe valve at the construction site. While attempting this lift, Fleck was caused to re-herniate his lumbar disc, which required spinal surgery in 2010. Fleck was unable to return to work as a sprinkler fitter and is currently unemployed.

Fleck maintained that the customary industry practice for hoisting the sprinkler valve was to be done from an anchor in the ceiling, but O’Neil Construction prohibited Fleck from using a hoisting device to install the valve, which forced him to lift the heavy valve by hand.

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The U.S. Occupational Safety and Health Administration (OSHA) has revised its reporting requirements when an employee dies on the job or suffers a work-related hospitalization, amputation or loss of an eye. If an employee is severely injured, employers will now be required to immediately notify OSHA of the work-related fatality within 8 hours and work-related in-patient hospitalizations, amputations or loss of an eye within 24 hours. This shortened the timing that employers are required to notify OSHA of these serous injuries.

In the past, OSHA was required to report only work fatalities and in-patient hospitalizations of three or more employees. In other words, if only one employee died or was seriously injured at work, no report to OSHA was required.

The new reporting rule goes into effect Jan. 1, 2015 and is particularly directed at workplaces under federal OSHA jurisdiction. This would exempt companies who employ 10 or fewer individuals regardless of the industry classification.

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The Illinois Appellate Court has answered a certified question that was brought to it from a circuit court judge. In this case, Michael McGrath owned a home designed and built by Patrick Plunkett Architectural Design Ltd. and insured by American Family Insurance Co. McGrath filed an insurance claim on Aug. 23, 2006 claiming that the water damage to his home was caused by the faulty design in construction by the defendant, Patrick Plunkett Architectural. American Family first denied McGrath’s claim; he then filed suit against American Family and won in federal court. McGrath won his case on summary judgment, and American Family agreed to a settlement for about $1.1 million. After paying McGrath, American Family requested that McGrath sign a written assignment to the extent of its payment, but McGrath chose not to respond.

American Family then filed suit against the defendants, Patrick Plunkett and his architectural firm, claiming negligence and causing the damage to McGrath’s home. Since American Family did not have an executed written assignment, the insurance company filed suit in its capacity as McGrath’s equitable subrogee. At the same time the American Family lawsuit was pending, it filed a lawsuit against McGrath for specific performance in order to obtain his executed written assignment. However, American Family’s suit against defendants was dismissed with prejudice on a combined motion to dismiss under §2-619.1 of the Code of Civil Procedure (735 ILCS 5/2-619.1), with a trial court finding that American Family was required to have a written assignment in order to pursue a subrogation claim. Shortly after that, American Family’s lawsuit against McGrath was dismissed with a trial court finding that American Family had released its claim for an assignment by settling the federal lawsuit. The trial judge also found that the claim was barred by res judicata based on the dismissal of the equitable subrogation suit against defendants.

American Family simultaneously appealed the dismissal of both lawsuits and the appellate court affirmed the dismissal of the subrogation claim, holding that American Family had failed to perfect its rights of subrogation under the terms of the insurance policy. However, the appellate court reversed the dismissal of American Family’s claim against McGrath and remanded the case. The opinion of the court in that case was unpublished under Supreme Court Rule 23. On remand, McGrath eventually did execute the assignment for American Family and that case was dismissed.

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A nationally recognized art critic and historian, Gerald J. Nordlund, visited the Art Institute of Chicago at 111 S. Michigan Avenue on Sept. 5, 2009. He was 82 at the time. After leaving the Art Institute, Nordland stepped onto a retaining wall, which separated the sidewalk along Columbus Drive from a driveway serving the Modern Wing at the east side of the museum.

Nordland alleged that the height differential between the top of the retaining wall and the adjoining sidewalk caused him to fall as he attempted to step back down to the sidewalk. He struck his head and suffered facial injuries and a subdural hematoma and permanent sight loss.

The defendant, Interactive Design Inc., argued that the design of the retaining wall met the architectural standard of care and that Nordland’s contributory negligence was the proximate cause of his fall. The defense at trial also denied that his vision loss was related to this occurrence.

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Ricky Bottensek, 44, was working as a landscaper for his brother’s company, which turned out to be a third-party defendant in this case, Bottensek Inc. The job site was in Rochelle, Ill. On Feb. 28, 2008, the defendant, Fischer Excavating, was digging a trench for the installation of a stilt fence. The Fischer employee and defendant, Rod Hagemann, was operating a rented trenching machine, cutting a trench in the frozen ground.

Bottensek was working behind the machine, holding a fence stake steady while his co-worker waited to strike the stake with a sledgehammer to drive it into the trenched ground, when Hagemann lost control of the trenching machine causing the trencher and attached cutting chain to shift backwards. The cutting chain entangled one of Bottensek’s legs and pulled them partially through the rotating chain causing severe injuries to both of his legs.

He sustained an open fracture of the right femur, closed fractures of the left distal tibia and fibula with dislocation and a large complex degloving wound to his left lower leg, requiring multiple surgeries and probable future ankle fusion surgery.

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In a case dealing with an accident at a construction work site, Samuel Escareno sought damages against Terra Cotta Commons Condominium Association and Kass Management Services for injuries he suffered. Terra Cotta Condominium was the owner of a condominium building that was managed by Kass Management. Kass hired Sherwin Painters Inc. to do both the painting and the labor to paint portions of the building.

One of the painters hired by Sherwin was Samuel Escareno. He was injured when he fell off a ladder while trying to replace a window screen.

In January 2010, Escareno filed suit against Kass and Terra Cotta. Kass third-partied and sued Sherwin for contribution, but Sherwin moved to dismiss, citing that it had waived its lien on Escareno’s recovery.

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Robert Barnett, a homeowner, hired Dawson Construction LLC to do some home repair work. The work included climbing a ladder to get on the roof to make some repairs to it. Juan Garcia , a 43-year-old day laborer, was working for Dawson Construction at the time. Garcia was asked to work on the roof, which was wet.

Garcia climbed the ladder to the roof and then fell. He sustained multiple injuries, including cervical injuries at C3-4, a left elbow fracture and a fractured right knee cap (patella). Garcia underwent a number of surgeries related to his injuries and incurred approximately $118,300 in medical expenses.

He filed a lawsuit against the homeowner, Robert Barnett, claiming that he chose not to comply with state law by correctly evaluating Dawson Construction, which was not licensed or bonded, before hiring the contractor and insuring that the work at his home would be performed safely.

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Gamesa Technology Corp. entered into a contract with Minnesota-based Outland Renewable Energy to provide maintenance for Gamesa’s wind turbines. Iberdrola Renewables Inc. runs the Gamesa-made turbines at the Cayuga Wind Farm located in Livingston County, Ill.

While servicing a Cayuga turbine, one of Outland’s employees, Aaron McCoy, was electrocuted when the turbine unexpectedly re-energized. McCoy filed a personal injury lawsuit in state court against Iberdrola Renewables and Gamesa. The case was removed from state court to federal court on diversity of citizenship grounds. Iberdrola Renewables impleaded Outland Renewable Energy LLC, claiming indemnification based on the contract and the Illinois Joint Tortfeasor Contribution Act.

Outland then filed 22 counterclaims, which included indemnification raising federal and state anti-trust claims and other state law claims. Outland was not successful in seeking a preliminary injunction against Gamesa’s allegedly unfair competitive practices.

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