Lineman received $1 million settlement for injuries

From the April 03, 2006 Missouri Lawyers Weekly.

Lawyer stresses workplace safety as the greater issue
$1,020,999 Settlement

Watching out for fellow contractors should have been the lesson learned, according to the lawyer for an electrical utility worker who won a settlement of more than $1 million following a workplace incident that ended the career he had known for three decades.

On July 7, 2005, Ben Berry, a 58-year-old lineman and trouble shooter for Springfield City Utilities, responded to a repairs call at a home in the Craigmount Place area, which had been undergoing improvements as part of a government refurbishment project in Springfield, Mo.

Upon arrival, Berry inspected a problem weatherhead on a house, which was also undergoing roof repairs at the time, and prepared to make necessary repairs of his own to power line connections with the structure. Berry made use of a lift on his truck to investigate the situation and perform his work. The lift had been returned to the down position while Berry retrieved the necessary supplies to complete his work.

While standing next to his utility truck, Berry heard an unusual sound and turned just as six 90-pound bundles of shingles fell from the roof, struck him and knocked him to the ground, causing him to suffer a torn rotator cuff on his right shoulder and a fractured right ankle.

The issue was settled informally even before depositions were completed. But lawyers for the plaintiff insist there is much more involved in this case that emphasizes a need for safety and accountability in the workplace.

“At first glance it is like, ‘good grief, he got a torn rotator cuff, and they paid him a million bucks?’ But there is a reason for that,” explained plaintiff Neil Chanter.

Chanter stressed that in addition to his client having suffered an injury that now prevented him from performing the only job he had known for 30 years, an investigation into the case indicated that conditions leading to the mishap itself should be examined for the safety of all construction and utility contractors.

According to Chanter, Berry’s injuries occurred when roofers with Forgery Precisions Roofing were working on the structure. They attempted to secure approximately 450 pounds of shingles in place for later use with nails rather than blocking the stacks by way of the more common method of using a two-by-four plank nailed into the existing roof to block a load from sliding on the angled surface.

While the defense claimed Berry must have hit the shingles with the boom lift from his truck, reconstruction of the incident proved otherwise. Three continually running video cameras showed the truck’s boom never came within 15 to 20 feet of the stack that fell.

“Obviously, the general contractor’s position was that this was a roofing contractor issue and, ‘We’re not micromanaging these guys, and this is something they should have done,’” Chanter said. “Relevant to that issue, the general contractor said, ‘For crying out loud, use two-by-fours.’ Subsequent remedial measures don’t ordinarily come in, [but] we believe we were going to be able to get it in as to the issue of control. That is just one interesting issue.”

While investigators were working on Berry’s case, a neighbor who was watching construction activity that day came forward and alleged that the roofers involved had also tapped an electric powered nail gun into the weatherhead and performed their work in a manner less than acceptable by industry standards.

Chanter said that the roofers denied tapping into the weatherhead but said that some sort of tampering with the shield was behind his client being called to the scene in the first place, although it was not directly related to the injuries he suffered.

“From our perspective, this is a huge issue,” Chanter said. “The general contractor explained, for example, during deposition, that actually some of these workers had approached the general contractor’s representative on the site a few days before and said, ‘Hey, do you guys mind if we tap into the air conditioning units as we’re doing this to power up the nail guns?’ The guy who was working for the general [contractor] said, ‘I’ve never heard of anything like that and even if I had, it wouldn’t be by code so it’s a no go.’ And then a totally unbiased witness in all this claims to see them doing, essentially, exactly that with the weatherhead.”

Chanter stressed that although there were factors involved that did not directly relate to the injuries suffered by his client, the situation at large behooves contractors and subcontractors to make sure their employees are watching out for the safety of all persons who might in anyway be connected to the job site.

“Frankly, I suspect it is just an issue with an individual or one or two individuals for this particular roofer,” Chanter said.

“Certainly workplace safety, anticipating what you as an individual or even other individuals with your particular subcontractor [might do or not do], but anticipating workplace safety for all the people on the project is kind of a prevailing safety issue,” Chanter said.

Berry was placed on a lifetime restriction by his treating physician and is not to lift anything more than 25 pounds above his head or 40 pounds to the waist.

Type of Action: Personal injury
Type of Injuries: Torn rotator cuff and ankle fracture
Court/Case Number/Date: Greene County Circuit Court /105CC3715/March 6, 2006
Caption: Berry v. Forgery Precision Roofing, et al.
Judge, Jury or ADR: Settled informally
Name of Judge: Thomas E. Mountjoy
Verdict or Settlement: $1,020,999 settlement
Special Damages: $53,545.62 past medical, $83,000 per year from date of injury until retirement.
Allocation of Fault: N/A
Last Offer: N/A
Last Demand: N/A
Attorney for Plaintiff: Steve Garner and Neil Chanter, The Strong-Garner-Bauer, P.C., Springfield, Mo.
Insurance Carrier: Capitol Indemnity Corp. and State Farm
Plaintiff’s Experts: None
Defendant’s Experts: None