Court of Appeals upholds verdict for 2004 injury in common work area
After multiple appeals, Douglas Latham has only one more appeal between his 2004 injury and justice. This week, the Michigan Court of Appeals rejected the appeal arguments of the Barton Malow, Co., after a jury awarded Latham 55% of his total damages against Barton Malow for failing in its duty as a general contractor to instill sufficient fall safety procedures in a common work area. If the Republican-and insurance-dominated Michigan Supreme Court doesn't throw out Latham's verdict, he will finally receive the compensation he was granted for two serious leg injuries.
Latham fell from the mezzanine at the Oakview School project in Lake Orion. Barton Malow argued that it was only the "construction manager" and did not owe the duties of a "general contractor." This argument was in defiance of longstanding Michigan law that holds accountable for common area work safety the entity that has supervisory control and responsibility. Since Barton Malow had that "supervisory and coordinating authority," it could not ignore the concomitant safety responsibilities.The Defendant also argued that the mezzanine wasn't a "common work area" because only one sub-contractor was working in that area at the exact moment when Latham fell while unloading drywall. The Court of Appeals pointed out that Barton Malow was essentially misquoting the Michigan Supreme Court's rule regarding the number of subcontractor employees who must be endangered in a common work area to create a duty in the General Contractor: the Court has previously made clear that a common work area is created where a significant number of employees of at least two subcontractors will work in the area during construction--not at the moment of injury.
The defendant also argued that the jury instructions were imprecise, even though they basically quoted to the jury the operative language from prior Supreme Court opinions. The Court of Appeals panel rejected this claim, noting that while not Shakespearian prose, the instructions were accurate, fair and did not deny Barton Malow justice or constitute an abuse of discretion. Normally, even erroneous instructions are not grounds for overturning a verdict unless the lower court's decision is "outside the range of reasonable and principled outcomes."
Barton Malow argued that the plaintiff hadn't adequately proven that a signfiicant number of workers would be exposed to danger by working at heights without fall protection, and attempted to change the definition of risk that the Supreme Court had already applied to the facts of the case. The Court of Appeals noted testimony of risk exposure to iron workers, rough carpenters, drywallers, painters and finishers, plumbers and electricians, and the fact that this injury did not occur in an isolated area.
Finally, the Court noted that the Barton Malow safety representative did not understand the safety guidelines he was obligated to enforce and that the general had not installed any form of anchor points for use in a safety harness system. Under the circumstances, the contractor had no reasonable basis for objecting to the jury's decision holding it 55% accountable for this man's injuries.