Phila. Jury Awards $4.6 Mil. for Painter’s 40-Foot Fall

By: Chris Placitella @ Mar 21, 2012

A Philadelphia jury awarded $4.6 million in compensatory damages to a man who fell 40 feet from a utility pole he was painting.

The $4.6 million award to plaintiff Vincent P. Nertavich Jr. was reduced by the jury’s finding that he was 49 percent negligent, according to the verdict sheet. The award also will be reduced by a $522,000 workers’ compensation lien.

The jury found that the negligence of defendant PPL Electric Utilities Corp., which hired Nertavich’s employer to paint its utility poles, was a substantial factor in causing Nertavich’s injuries, according to the verdict sheet.

Nertavich fell Sept. 23, 2007, when he was 40 feet high on a 90-foot steel electrical transmission pole, according to the plaintiff’s pretrial memorandum. Nertavich’s employer, QSC Painting, was a contractor hired by PPL to paint transmission poles.

The plaintiffs agreed that Nertavich was not wearing all of the appropriate safety equipment and that he had not “tied off correctly” onto the pole owned by defendant PPL, plaintiff’s counsel Joel S. Rosen, of Cohen Placitella & Roth in Philadelphia, said. Nertavich fell after his safety equipment slipped off the peg of his climbing ladder.

Nertavich testified that he asked his supervisor if he had to wear his safety harness on the worksite, but he was told that he did not need to wear it, Rosen said.

“He was doing the job as he was taught and told,” Rosen said.

The standard in the electric industry is to have internal rules for safety procedures and to monitor if the people working on electric poles, even those who are contractors, know how to safely go up on the poles, Rosen said.

PPL had a safety field representative in the field, but the representative was not really trained on safety, Rosen said.

While PPL could not be found responsible under the law for the acts of its contractor, PPL did control the “means and methods” of the contractor’s work, Rosen said.

PPL specified to the electric-pole manufacturer how the poles should be made, including specifications for the clips the portable climbing ladders attached onto, plaintiff’s counsel J.B. Dilsheimer, also of Cohen Placitella, said.

“It was really up to PPL if they wanted to specify certain attachments to make it safe.” Dilsheimer said.

The poles could have had an independent place for workers to attach their safety lines, Dilsheimer said.

The jury did not find that the ladder, from which Nertavich fell and designed by defendant Thomas and Betts Corp., was defective and a substantial factor in Nertavich’s injuries, according to the verdict sheet.

Thomas and Betts did not participate in the jury trial, Dilsheimer said.

Thomas and Betts settled for a confidential amount, Dilsheimer said.

PPL had a cross-claim against Thomas and Betts for which they wanted to keep them on the verdict sheet, Rosen said.

Philadelphia Common Pleas Court Judge Mark I. Bernstein presided over the trial.

Andrew F. Susko and Luke A. Repici of White & Williams were PPL’s defense counsel. Susko did not respond to a request for comment Tuesday.

PPL argued in court papers that QSC had the sole responsibility, including under the contract with PPL, to ensure its employees were working safely.

“The manner and method of QSC’s work was controlled by QSC, not PPL EU,” PPL’s counsel said in the defense pretrial memorandum. “Plaintiff’s co-workers confirmed that QSC controlled the worksite, the manner and method of their work, and safety practices. Moreover, QSC expressly undertook responsibility for painting the poles safely, as the contract between PPL EU and QSC explicitly states. … Although plaintiff attempts to argue otherwise, an out-of-possession owner such as PPL EU, which does not exercise control over a worksite, is not responsible for any accidents that occur simply by observing the progress of the work or visiting the worksite.”

Other defendants also settled before trial for confidential amounts, Dilsheimer said.

Defendant Winola Industrial Inc. made portable climbing ladders, but there was never any evidence those portable ladders were connected to the actual ladders used at the job site, Dilsheimer said.

Defendant Falltech made the lanyard, or ropes, Nertavich was using, Dilsheimer said.

Winola and Falltech were let out of the case, Dilsheimer said.

Defendant KTA-Tator Inc., which was the painting inspector hired by PPL to determine if the weather was appropriate for painting, got out on summary judgment, Dilsheimer said.

PPL did not present any experts on damages, but they did challenge the plaintiff’s experts on cross-examination, Rosen said.

“Mr. Nertavich was injured literally from head to toe in this horrific fall,” the plaintiff’s papers said. “Most significantly, he is now three-and-one-half inches shorter than when he started work on the day of his accident from burst compression fractures in his lumbar vertebrae. He experiences intense pain daily, most recently in the hip. … In total he has endured 19 accident-related operations so far.”

Nertavich’s counsel said in court papers that his future medical care would cost $1.67 million to $2.3 million and his future lost earnings wee $1.21 million.

PPL’s counsel said in court papers that Nertavich’s future medical care would cost $896,536 and his lost earning capacity was at most $752,867 and as little as $120,265 if he had a full-time sedentary job.

The jury verdict in Nertavich v. PPL Electric Utilities was rendered March 9.

This article originally appeared in The Legal Intelligencer on March 21, 2012
Written by Amaris Elliott-Engel