On Oct. 16, 2007, union sprinkler fitter Frank Barnai was working at a Wal-Mart Store construction site in Joliet, Ill. He tripped over an electrical conduit protruding 6-12 inches from a concrete floor. Barnai was carrying a sprinkler pipe over his shoulder at the time of his fall. Barnai, 54, sustained a re-injury to his back. He had previously undergone lumbar fusion surgery at L4-5. As a result of this incident, Barnai underwent multiple revisions of the prior fusion and eventually required a multi-level spinal fusion from T-9 to S-1. Barnai is unable to return to work and is mostly confined to a wheelchair.
Barnai sued Wal-Mart, the owner, the general contractor, International Contractors Inc. and the company that installed the conduit, Nuline Technologies, for choosing not to inspect the work area for tripping hazards, failing to properly identify the tripping hazard, choosing not to mark the protruding conduit as a hazard and failing to ensure workers were not exposed to hazardous conditions.
The defendants contended that Barnai was contributorily negligent for not watching where he was walking and argued that he was aware of the dangerous conditions because he had walked past the area hundreds of times before he fell.
Barnai settled his case against Wal-Mart, International Contractors and Nuline for a total of $5,073,464. As part of the settlement agreement, Wal-Mart and International Contractors assigned their third-party claims against Barnai’s employer, Summit Fire Protection to Barnai.
At the time of the settlement, Summit had a worker’s compensation lien over $2 million, which Summit refused to reduce. In this contribution trial, Barnai as the assignee, argued that pursuant to OSHA regulations, Summit was primarily responsible for the safety of its employees on the job site.
Other Summit employees testified that they felt the conduit that caused Barnai’s fall constituted a tripping hazard. Barnai’s expert witness testified that once an employer identified a hazard, like the conduit in this instance, it became the employer’s responsibility to ensure its employees were not exposed to the hazard.
The defense for Summit contended that conduit was not a tripping hazard, and there was nothing it needed to do to further protect its workers. The defense was barred by the trial judge from mentioning that Healy Scanlon Law Firm had represented Barnai in the underlying case or that Barnai was not the actual party at interest rather than Wal-Mart and International Contractors. Barnai had assigned his interest in this contribution claim to Wal-Mart and International Contractors. Summit’s post-trial motions have been denied, but the court records show that an appeal has been filed.
The verdict for Frank Barnai, as assignee of Wal-Mart Stores and International Contractors Inc. was that Summit Fire Protection was 52% liable toward the underlying settlement of $4,123,464. The jury also apportioned liability against Wal-Mart and against International Contractors. Plaintiff’s post-trial motion to convert the percentage verdict to a monetary award was granted and the trial judge entered judgment against Summit in the amount of $2,144,203.
The attorneys representing Frank Barnai as assignee were Kevin T. Vugeler and Patrick C. Anderson. At trial, the plaintiffs presented a safety expert as did the defendants.
Frank Barnai, as Assignee of Wal-Mart Stores, Inc. and International Contractors, Inc. v. Summit Fire Protection Co., No. 08 L 11371 (Cook County, Ill) .
Kreisman Law Offices has been handling worksite injury cases, construction injury cases, truck accident cases, forklift accident cases and automobile accident cases for individuals and families who have been injured or killed by the negligence of another for more than 38 years, in and around Chicago, Cook County and its surrounding areas including, Summit, Justice, Hickory Hills, Palos Hills, Robbins, Park Ridge, South Chicago Heights, Chicago (Washington Park, Bridgeport, Canaryville, Bronzeville, Kenwood, Oakland, Woodlawn, Englewood, Marquette Park, Beverly), Chicago Ridge and Oak Forest, Ill.
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