Anthony Morales v. FMS Projects, Inc.; and Amber Flooring, Inc.

Synopsis

Defendant Doe General Contractor contracted with homeowners Diana and Joseph Stern to remodel their Oakland Hills home. The remodel included, among other things, new hardwood flooring and stairwell in the home's entry.

During the course of the remodel, an employee of Doe General Contractor removed the stairwell treads in the new entry stairwell. The treads were removed so that the flooring subcontractor, Amber Flooring, Inc. could install new flooring in the entry. Cal-OSHA requires a live person warn others of a floor opening if a guardrail or floor cover cannot be provided. Even though Doe General Contractor and Amber Flooring both knew the home entryway was a construction walkway, they failed to take reasonable precautions to protect people from walking into the opening.

Doe General Contractor then rolled and taped rosin paper on the new hardwood flooring to protect it from construction foot traffic. And without replacing the stair treads, Doe General Contractor rolled and taped the rosin paper over the stairwell opening thereby concealing the drop to the home's basement.

On August 20, 2010, the plaintiff Anthony C Morales went to the construction site to work on the home's alarm system. Morales walked through the main entrance toward the thin paper sheet, unaware that it was all that separated the entrance level from the basement below. He stepped on the paper and fell. Morales barely caught himself as he plummeted, suspending himself with his left knee and elbow. The fall and awkward strain resulted in significant injuries to Morales' left knee, neck and low back.

Doe General Contractor argued that the floor opening was open and obvious because the paper only covered a small portion of the open stairwell and that it was unreasonable for Morales to walk so close to the visible opening. Doe General Contractor' employees also testified that Morales had actual notice of the opening, however, Morales countered that these employees had misidentified him. Amber Flooring argued that it did not create the floor opening and it was the responsibility of the general contractor, Doe General Contractor, to maintain walkways.

Injuries/Damages

Morales was in shock and sore all over when he pulled himself from the floor opening. He felt sore and stiff the rest of the day and thereafter. He remembers taking it easy that weekend and not feeling well. He hoped his condition would improve but his neck, back and left knee continued to hurt. Morales alleged that the fall aggravated his pre-existing lower back and neck pain. He also sustained a new tear to his left medial meniscus, on which he had previously had surgery due to a prior injury. Morales underwent a partial medial meniscectomy but continued to experience pain and instability in his left knee.

Morales was precluded from returning to his job as an alarm technician for a little over a year and claimed $91,042.28 in lost income. His past medical expenses totaled $35,061.10.

Result

The parties negotiated a total settlement of $475,000. Of that amount Amber Flooring, Inc. paid $75,000 and Doe General Contractor paid $400,000.

Case

Anthony C. Morales v. Doe General Contractor; and Amber Flooring, Inc., No. 1-12-CV-234633

Court

Alameda County Superior Court

Date of Settlement

7/24/12