Wednesday, May 3, 2006
Contractor Not Liable to Worker Hit by Scaffolding During Cell Phone Conversation—Court of Appeal
By a MetNews Staff Writer
A jury’s verdict absolving two contractors of liability for injury suffered by a subcontractor’s supervisor hit by falling scaffolding was supported by evidence that the plaintiff was looking down and talking on his cell phone while workers tried to warn him of potential danger, the Court of Appeal for this district ruled yesterday.
“Here, it is ironic that Eric Jonkey...a seasoned and mature construction worker who had risen in the industry to a position of management and ownership, could be injured in the way we shall describe,” Justice Kenneth Yegan wrote. “Of all people at a construction site, appellant was and is chargeable with caring for his own safety. That he was walking near scaffolding which was being disassembled at a construction site looking down absorbed in a cell-phone conversation is tantamount to strolling on a battlefield wearing ‘horse blinders’ and ear-plugs. While we regret that he was injured, he should be grateful that he wasn’t killed.”
Jonkey, part-owner of Capital Steel Fabricators and the company supervisor, suffered a significant foot injury when a plank fell from scaffolding that was being disassembled by an employee of Enrique A. Cruz Masonry at the Thousand Oaks site, where a car dealership was being built.
Jonkey’s firm provided steel used in the construction, Carignan Construction was the general contractor and Cruz Masonry was the masonry subcontractor on the project, and Jonkey sued both of those companies for negligence.
Jonkey was on site waiting to place a steel column, which had to await the disassembling of the 28-foot high scaffold. Workers testified that because he was looking down and talking on the phone, Jonkey could not see that planks were being dropped down, and that he seemed not to pay attention when one of the workers yelled out a warning.
The plaintiff testified that he heard someone yelling a split second before the plank hit his foot, but that there was no time to avoid impact. A Cruz Masonry executive testified that the scaffolding was being disassembled under a procedure, called “walking the plank off,” that was recognized and accepted in the industry and had been used for years without prior injury.
A defense expert said the procedure was appropriate and was carried out properly. A plaintiff’s expert disagreed, saying that the dropping of planks to the ground was too dangerous at a crowded site and that the planks should have been dropped “chain gang style.”
After nine days of trial, the jury found that Carignan was not negligent and that while Cruz Masonry was negligent, this was not a substantial factor causing the injury.
Yegan rejected the plaintiff’s arguments that the finding of lack of causation was unsupported by substantial evidence and could not be reconciled with the jury finding of negligence.
The jury, the justice explained, probably concluded that Cruz Masonry was negligent based on failure to warn, rather than on the basis of the method used to disassemble the scaffolding. It then logically follows that the jury found that Jonkey would have been injured even if an adequate warning had been given, because he was not paying attention, Yegan suggested.
“Where, as here, there is no special finding on what negligence is found by the jury, the jury’s finding is tantamount to a general verdict,” the justice said. “As long as a single theory of negligence is lawfully rebutted on a lack of causation theory, it matters not that another theory of negligence is not so rebutted.”
The case is Jonkey v. Carignan Construction Co., 06 S.O.S. 2222.
Copyright 2006, Metropolitan News Company