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Man injured on construction site must pay sanctions when he cannot prove claim alleged by co-defendants

Matthew Edington was badly hurt when he fell through an unguarded hole at a construction site while he was painting.  He sued the general contractor who alleged that a third-party sub-contractor had removed the mandatory guard-rails and was a "third-party at fault."  Edington then joined Sobie Company, the sub-, in the lawsuit and Sobie made a nuisance offer of judgment ($1,000.00), which Edington rejected.

Despite the circumstantial evidence that Sobie employees had removed the guardrails, as alleged by the principal defendant, the Kent County trial judge summarily dismissed the case against Sobie, holding that Edington needed to produce direct evidence of Sobie employee involvement.  Sobie then filed a motion for costs, which the judge denied "in the interest of justice."  The trial judge deemed the de minimis offer by Sobie to be a gimmick not consistent with the intent of the offer of judgment rule.

Plaintiff was ultimately awarded 30 percent of his economic damages, amounting to about $100,000.00, after the jury found that he was also significantly at fault.  Sobie and Edington appealed the court's decision in their dispute.  The higher court deemed Edington's circumstantial evidence of Sobie involvement mere speculation and conjecture and upheld the denial of his right to have a jury hear the evidence (which included qualified expert testimony). 

The Court also held that Edington's request that the jury not be allowed to assess fault against Sobie--since it had been dismissed for lack of evidence--now foreclosed it from arguing that the judge was incorrect in dismissing Sobie.  The Court of Appeals also ruled that the lower court should have imposed cost sanctions against Edington for refusing to accept the $1,000.00 settlement offer, since he did not improve his position.  The Court held that the trial judge was wrong to follow the "interest of justice" exception, and that it was irrelevant that Edington only joined Sobie after the principal defendants identified Sobie as the culprit in moving the  originally-placed guardrails.

Thompson O’Neil, P.C.
309 East Front Street
Traverse City, Michigan 49684
Toll Free: 1-800-678-1307
Fax: 231-929-7262