Appellate Courts Reverse Big Jury Verdicts for Two Fallen Construction Workers

by James R. Keller

This article appeared in St. Louis Construction News & Review, p. 9, January-February, 2003.

In two unrelated cases, Missouri's appellate courts reversed in December 2002 judgments for injured construction workers of $2,760,000 and $700,000. Coincidentally, the workers had fallen through holes in floors on construction projects at the ADM Soybean Processing Plant in North Kansas City, Missouri and Sigma Chemical Company in St Louis, Missouri.

The cases exemplify the power of a Missouri jury to award considerable money and the mandate of the appellate courts to take it away when there is insufficient evidence or the trial judge erred in instructing the jury on the law. The cases are William Gomez v. Construction Design, Inc., WD 60093, decided December 24 in the Western District (Kansas City) andTodd Erdmann v. Condaire, Inc. and Sachs Electric Co., ED 80447, decided December 3 in the Eastern District (St. Louis).

Gomez was a "pipefitter helper" of TMS, Inc., a maintenance contractor hired to repair and modify pipes at the plant in North Kansas City. During this work, employees of CDI, another maintenance contractor, were removing a heat exchanger when they dislodged a section of the plant's floor, creating a hole in it.

Gomez fell through the hole while carrying planks for a scaffold. He suffered serious injuries including head trauma, a broken left wrist, face lacerations and carpal tunnel decompression.

Gomez sued CDI claiming specific acts of negligence including that the CDI employees were negligently operating a pulley in the area of the hole when the accident happened.

The jury returned a verdict of $3,760,000 for Gomez but the trial court found this to be excessive and thus reduced the verdict by $1,000,000, conditioned upon Gomez' acceptance of the lower amount or Gomez would have to start over with a new trial. Gomez agreed to the reduced judgment.

The trial judge had instructed the jury based upon a cause of action for resipsa loquitur. Res ipsa loquiturdoes not require the jury to expressly find that CDI's actions were negligent. It is appropriate when 1) the event causing the injury does not ordinarily occur without negligence; (2) the condition causing the injury is under the control of the defendant; and (3) the defendant has superior knowledge as to the cause of the injury. An example would be a patient who finds a sponge left inside him after surgery.

By definition, a plaintiff who alleges specific acts of negligence cannot recover for res ipsa loquitur and the jury must be instructed on the law of negligence. Because the trial court instructed on the wrong theory, this was "clear, evident and obvious error for the trial court."

The appellate court erased the judgment of $2,760,000 and ordered a new trial, leaving Gomez with only the hope for a similar result in another trial before a different jury. In the next trial, however, the trial judge would have to instruct the jury on the law of negligence and require a specific finding that CDI's actions were indeed negligent.

In the Erdman case, a carpenter and his wife sued for personal injuries in the Circuit Court of St. Louis City, alleging negligence by two subcontractors, Condaire, Inc. and Sachs Electric Co. Erdman was a carpenter for Interior Construction Services (ICS), one of several subcontractors working on a two-level expansion at Sigma Chemical Company.

The accident happened when Erdman stepped on a tarp draped over a vessel designed to hold chemicals. He fell through a hole, hit his groin area, and severed his urethra, requiring reconstructive surgery. A wooden cover that should have been placed over the hole to protect against such a fall was lying against a wall fifteen feet away.

Condaire and Sachs Electric had contracted with the general contractor, Fru-Con Construction Company, to take the necessary precautions to avoid injuries to other workers and barricade all floor openings resulting from their work. Erdman claimed that Condaire or Sachs Electric or both had negligently removed the wooden cover from the opening and had failed to warn workers like Erdman about the opening.

The jury agreed, awarding Todd Erdman $700,000 and his wife Tracy $235,000 for her separate loss of consortium claim.

During trial Erdman could not prove that either Condaire or Sachs actually created the dangerous condition. Thus, Erdman had to prove that one or both of them had responsibility for and control over the area where the accident occurred.

Erdman provided evidence that employees of Condaire and Sachs were the only ones in the area prior to the accident. This was not enough, according to the appellate court, to exclude all other reasonable hypotheses or eliminate the possibility that others had been in the area. In fact, Condaire and Sachs had moved on to other areas of the plant at the time of the accident and they did not control Erdman's activities.

Simply put, despite many favorable inferences, Erdman did not prove his case to a sufficient level to merit a decision by the jury. Therefore, the appellate court sent the case back to the trial judge with instructions to enter judgment in favor of Condaire and Sachs. Unlike Gomez, Erdman would not have another chance.

James R. Keller is a partner at Herzog, Crebs & McGhee, LLP, St. Louis, MO, where he concentrates on business litigation, construction law and ADR. He also is a neutral/arbitrator with the American Arbitration Association and a mediator.