In January 2007, plaintiff David, 38, an elevator constructor, began working on a project at the new Extended Stay Hotel in San Rafael, which consisted of the construction of two elevators. David, along with three other installers, was employed by ThyssenKrupp Elevator Corporation. On January 31, the building was surrounded by scaffolding installed by Kenyon Plastering Inc., a stucco subcontractor hired by Bison Builders Inc., the general contractor of the construction project. As David transported tools and parts over a plywood walkway, located at the front portico of the hotel, he hit his head on low scaffolding over the walkway. David claimed that between January 31 and February 7, he hit his head six times while transporting items into the hotel. He claimed the incidents caused injuries to his neck and spinal cord.
David sued Bison and Kenyon. He alleged the defendants failed to provide a safe workplace, specifically safe access in a common area of the construction site. David claimed that the plywood walkway at the hotel’s entrance, which ran under the scaffolding, was not adequate. ACE Primary intervened in David’s lawsuit, seeking recoupment of workers’ compensation benefits paid to David. David claimed that while a 10-foot-tall opening in the scaffolding (for access into the building) was created by Kenyon, it was blocked by crates and debris by the time he and his co-workers arrived to the site. He claimed that Bison constructed the plywood walkway, which only had a height of 5-foot-6 instead of the 6-foot-8 required by Cal/OSHA. David claimed that he would have to duck under the cross-bracing each time he entered or exited the building, and that due to poor lighting and peripheral vision, worsened by his hard hat, he hit his head a total of six times. David further claimed that the plywood was warped and overlapping, making it unstable. He alleged that after reporting the obstruction and first head strike, his supervisor alerted Bison about the hazard, but the general contractor did not amend the issue.
Kenyon contended that its employees provided access through the 10-foot-tall opening and that no problem with the access point was brought to its attention. Bison contended that David and his co-workers were provided with safe access, but that they chose to use a shortcut under the low scaffolding. Both defendants contended that if there was a problem with the access, then ThyssenKrupp, David’s employer, should have stopped work until the problem was corrected. They claimed that David was negligent and entirely responsible for his damages for hitting his head on the scaffolding in the first place, and then doing so five more times. Bison filed a third-party action against ThyssenKrupp for contractual indemnity.
Bison and Kenyon contended that David’s head strikes were “bonks” and “bumps” that could not cause spinal cord compression. They further contended that David had no neurological symptoms related to his spinal cord compression until two months later, and just three days before his surgery, specifically numbness rising from his feet up to his chest that occurred over a period of three days. The defendants contended that David would have experienced symptoms closer to the head strikes if they were causally related.
The defendants further contended that David exaggerated the nature and extent of his injuries and residuals. They showed sub rosa videos of David walking in his neighborhood, which they argued was inconsistent with his reported residuals. They contended that his future loss of earning capacity claim was excessive, because David would likely have been unemployed 25 percent of the time, regardless of the injuries, because of downturns in the economy and construction industry.
David claimed that he complained to his supervisor and wife about hitting his head hard on the first day. He claimed that over the course of a week, he began experiencing pain and tingling in his arms and hands, which became progressively worse through March 2007. David claimed that he also experienced mild neck pain and bowel urgency in February. During the last week of March, David’s feet went numb, followed by his legs. He claimed that when he saw his primary physician that week, he was numb up to his chest. David was transferred to the emergency room, where an MRI revealed cervical disc herniations at C5-6 and C6-7, compressing on his spinal cord. He underwent a two-level fusion and discectomy on March 30, and followed up with a month of physical therapy. He continued seeing his workers’ compensation physician, and now sees a pain management and rehabilitation specialist for medication. He has also been approved for a spinal cord stimulator, which sends electrical signals into his injured spine for pain relief.
David claimed he still experiences residual pain, discomfort, fatigue and muscle spasms in his neck, as well as neuropathic pain in his hands and arms. He claimed that the numbness he experiences below the waist has made it difficult to ambulate, causing him to walk with a limp, sometimes requiring the use of a cane. He also claimed continuing bowel urgency, requiring him to wear a diaper. He has been on total disability through workers’ compensation since the accident, and his vocational rehabilitation expert claimed that he could return to work as a part-time property manager.
David claimed that his injuries have affected his ability to drive, and that he can no longer ride a bicycle, go running or play with his children. He claimed that he most misses the ability to work as an elevator constructor, a six-figure position that he really enjoyed.
David sought $153,804 in damages for past medical costs, $500,502 for past lost earnings, $2,557,391 for future loss of earning capacity, and $1,940,941 for future life care. He also sought damages for past and future pain and suffering.
The jury found Bison 75% responsible for David’s damages, ThyssenKrupp 20% responsible and David 5% responsible. Kenyon was found not responsible, while ThyssenKrupp didn’t pay on the award, by virtue of its status as David’s employer.
David recovered $11,732,637 in damages.