$5 million settlement for carpenter who was caused to fall during leading edge-work which resulted in knee replacement.

Daniel V. O'Connor, a partner at Anesi, Ozmon, Rodin, Novak & Kohen settled a construction negligence case for a package in excess of 5.8 million dollars. Plaintiff filed this action to recover damages for injuries sustained on September 17, 2002 during the construction of the Marriott Hotel at 165 East Ontario Street, Chicago, Illinois. Dan's client was an Irish born carpenter employed by McHugh Construction. McHugh had entered into a subcontract agreement with Bovis Lend Lease whereby it agreed to provide all labor and material in connection with cast-in-place concrete for this project.

At the time of the injury our client was framing the staircase connecting the second and third floors of this project. He was attempting to lay the planking in this area on the Perry scaffold that had been erected. He was laying the first piece of plywood on one side of what would become a stairway opening. At the time he was tied off to a rebar column to the right of the stairwell opening. His retractable lanyard extended across the opening for the stairwell which was at least 6 feet wide. As he walked across the support joists while carrying a sheet of plywood, his lanyard caught or snapped shut resulting in his falling backwards into the opening. At the time he had at least 9 feet of payout on his lanyard. When he fell, he hit the landing in the stairwell opening that had been poured with the floor below. The distance from the top of the Perry scaffolding to the landing was slightly less than his lanyard payout as a result of which his lanyard did not arrest his fall.

The Defendant contended that at the time of the injury the deck upon which Plaintiff was working was designated a "controlled access zone" by McHugh Construction, Plaintiff's employer. Designating an area a controlled access zone and staffing that zone with safety personnel is a means of fall protection under OSHA. After designating this a controlled access zone McHugh Construction had deck monitors on the deck on a constant basis observing for dangerous conditions or work practices. Persons not employed by McHugh were not allowed up on the deck in the northwest corner of this controlled access zone. McHugh also contended that because Dan's client was tied off at the time that there were no safety violations. Defendant further relied on the fact that OSHA investigated this occurrence the following day and found no OSHA violations and, therefore, issued no OSHA citations to anyone. Defendant contended that "the standard of care to which Bovis is held is that of reasonable care, not perfect care."

We contended that the fall protection provided by tying off to the subject rebar columns was inadequate. O'Connor argued that a static line should have been extended between 2 columns and that his client should have been able to attach his lanyard to the static line. This would have permitted some horizontal movement of the retractable lanyard while still providing adequate fall protection. Alternatively, it was also argued that the Defendant, Bovis should have sequenced the pouring of concrete columns so that a strap could be embedded into the column to allow a proper point to anchor a tie off. It was also demonstrated that the tie off system that was in use while it prevented workers from falling over the edge of the building, provided absolutely no fall protection for interior falls. In fact, we showed how the requirement of this system actually contributed to the fall as this retractable lanyard locked up causing our client to fall into the unprotected opening.

As a result of the fall, our client sustained injury to his back, ligament tears in his left knee leading ultimately to a knee replacement.

We were able to achieve this significant settlement even though an OSHA investigation after the occurrence found no safety violations.