Rising from the fall- 'Fresh eyes and ears' help 9-year-old case win over jury

By Douglas J. Levy The Daily Record Newswire It took Jon Garrett nine years, three failed summary disposition motions, 500 pages of briefs, and three appellate decisions before his construction injury case made it to an Oakland County jury. But even with issues of fact clearly defined by the appellate courts, Garrett, a Detroit solo attorney, said he knew that he couldn't win the jury by himself. He explained that, after working on the case from the factual standpoint for so many years, "I needed fresh eyes and ears to help me through it." So, he brought Petoskey-based Daniel Harris in two months before trial. It was a smart move, Garrett said, as Harris came up with a different angle for the main argument and new ideas to counter defendant. And although the $1.92 million verdict assigned 45 percent comparable negligence to plaintiff Douglas Latham and his employer, the net award was still what Garrett and Harris asked for. They said that three points to their strategy proved crucial: relying on appellate decisions to frame the argument; not being afraid to alter the initial argument; exposing defendant's safety responsibility based on its written policy; and telling the jury what plaintiff's contribution to the June 2002 accident was from the start. Anchoring their case In Latham v. Barton Malow Co., Latham, a subcontracted construction worker, fell from a mezzanine, where he and a co-worker were unloading drywall. He was not wearing fall protection, and in his complaint said that Barton Malow, the company that managed the school-building project, should have supplied and enforced such protection. The Court of Appeals and Michigan Supreme Court ruled that every element of the common work area doctrine per Funk v. Gen Motors Corp was met, with the high court noting "the law should be such as to discourage those in control of the worksite from ignoring or being careless about unsafe working conditions resulting from the negligence of subcontractors or the subcontractors' employees." So in opening statements, Harris said he told jury that, even with many elements to prove in the case, "it really comes down to a very simple issue: Did [defendant] take reasonable steps to make sure fall protection was available, and make sure the workers used it? That's what the Supreme Court defined for us. So it wasn't something the defense could alter or change." But how Garrett would have framed the argument was different before Harris joined in. Garrett said the defense focused on means and methods, while the plaintiff honed in on design--plans to build the mezzanine were in place from the beginning, and the architects and engineers should have had the structure's safety in mind. Garrett said he initially believed the lack of an anchor point on the mezzanine capable of holding 5 pounds of vertical force was the issue, "so a harness and lanyard would have been worthless to the workers. In essence, there was no fall protection; that anchor point should have been engineered into that right at the outset." However, Harris opined that lack of a guard rail was more important. "That issue was brought in very early on," Garrett explained, "when my client's employer responded to a safety violation they received from Barton Malow, saying something similar to that should have been done, and that was not [plaintiff's employer's] job to do that; that was Barton Malow's job to do that. As we talked to the jury afterward, that was their perspective as well." In favor of imperfection Another issue was the responsibility defendant had to worker safety, based on its internal policy. Harris said it was never followed because key people never saw it. "When I got in and started looking at it, there were a number of things in the safety responsibility matrix and the loss-control program that I picked out in those, and just hammered with all the witnesses with their safety coordinator and construction superintendent on the job," he said. "Both of those people testified when I cross-examined that they had never seen any of these documents. So really a big part of this case was a total miscommunication between the people within Barton Malow. And that's really why I think the jury found negligence in this case." But not negligence strictly on the defendant's behalf, he added, noting that Latham also had a role in the fall. So, he said, it was important for that to be known from the start. For example, Harris explained that the defendant raised points about the lift, which raised Latham and his co-worker up the mezzanine, not being parked perfectly. If plaintiff would have contested that, he said that jury credibility would have been lost, "because we knew he didn't park it perfectly because his co-worker came in and said he didn't." Rather, Latham parked the lift on an angle, and in doing so there was an 8-10 inch opening he stepped into, which caused his fall. So, he noted, telling the jury the worst part of the case from the get-go is the best thing to do, "and you don't try to change that." Backing that up was the fact that construction sites are, and always will be, imperfect; Harris even quoted Justice Stephen Markman's language in Ormsby v. Capital Welding Inc., which supported that, to each defense witness. The jury deliberated two hours before rendering its decision. Thomas Cardelli of Cardelli, Lanfear & Buikema PC, who represented the defendant, did not return Michigan Lawyers Weekly's requests for comment. Garrett said it was indicated that the verdict would be appealed. Garrett said that he's handled approximately 100 construction accident cases, and 99 of them mirror the scenario in this case. "The Funk doctrine is alive and viable," he added. "Justice Markman himself has reiterated that it is the public policy of the state of Michigan that a safe place to work be enforced. It's still a vital cause of action." Published: Mon, Jun 25, 2012