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Injured Painter Gets ½ Blame, ½ Award

Wednesday, March 28, 2012

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An industrial painter permanently disabled in a 40-foot fall from an electric transmission tower shares the blame for the accident and will therefore receive only half of his $4.6 million award, a Philadelphia jury has decided.

Because he chose not to wear appropriate fall protection, despite having painted at heights before, Vincent P. Nertavich, of Temple, PA, was found 49 percent responsible for his own injuries in his suit against PPL Electric Utilities Corp.

 QSC Contracting

 QSC Contracting

The painter worked for Pittsburgh-based QSC Contracting, which was not named in the suit. The company specializes in cleaning and painting energized transmission towers/substations, tanks, power plants, coal mines, bridges and other structural steel.

PPL, however, holds the other 51 percent of the blame and must therefore pay Nertavich about $2.3 million, the jury said in a verdict returned March 9.

Jurors deliberated four and a half hours in Vincent P. Nertavich, Jr. v. PPL Electric Utilities Corporation et al. following a nine-day trial in the Court of Common Pleas in Philadelphia County.

No Fall Arrest System

Nertavich, now 42, fell Sept. 23, 2007, from a tubular steel electric transmission utility pole he had been assigned to paint in Lehigh County. At the time, he worked for QSC Contracting of Pittsburgh, which had contracted with PPL to do the painting.

Nertavich suffered numerous severe injuries in the accident, including burst compression lumbar fractures, two broken legs, a head injury, knee damage and hip fractures—all of which left him several inches shorter and unable ever to work again, his lawyer, Joel Rosen, said Wednesday (March 28).

Nertavich had done some tower painting before, but he “had not done a lot of pole work,” Rosen said.

When Nertavich climbed the pole, using the structure’s ladder pegs, he wore a utility belt and a lanyard that he looped around the peg above him. He wore no harness, was not anchored, and had no vertical lifeline. When he slipped on one of the pegs nearly halfway up the 90-foot tower, the lanyard immediately came loose.

‘Doing Some Things Wrong’

Nertavich accepts his share of responsibility for the accident, Rosen said.

“I think that he recognized that he was doing some things wrong,” said Rosen. “We admitted that. There was no denying it. His life is kind of messed up.”

Still, PPL played a key role as well, because utilities are mandated to oversee their subcontractors, Rosen noted.

“In the electric utilities industry, they have a responsibility for contractor safety,” Rosen said. “This case was particular to the electric utilities industry.

“They can’t just throw people up on the poles. They have to maintain strict controls. 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.

Nertavich’s suit called it “outrageous and shocking to the conscience” that he had been allowed “to perform the peculiarly dangerous task of transmission pole painting … with only a lanyard and some wobbly, unevenly spaced climbing pegs to do the work.”

PPL had a representative at the job site, but he did not properly monitor the site and did not require Nertavich to wear fall protection safety equipment, Rosen said.

Lawsuit Filed

In 2009, Nertavich filed suit against PPL and five other companies, including Thomas & Betts Corp., which manufactured and sold climbing equipment. QSC was not named in the suit, because claims against employers are handled through the worker’s compensation system, said Rosen.

He would not comment on whether Nertavich had received any worker’s comp after the accident.

Nor was the Occupational Safety and Health Administration involved in the case. Employers are required to report to OSHA within eight hours if an on-the-job accident involves either a fatality or a so-called “catastrophe” that results in the hospitalization of three or more employees. In this case, no report was required or made, an OSHA spokeswoman said Wednesday.

By the time the case reached trial, all of the defendants except PPL and Thomas & Betts had settled or had been dismissed, and the jury found no wrongdoing on the part of Thomas & Betts.

‘Unreasonably Dangerous’

At trial, Nertavich’s attorneys argued that PPL’s lack of oversight and lack of insistence that Nertavich wear a Personal Fall Arrest System “created an unreasonably dangerous work site which was not obvious to the plaintiff but which was or should have been obvious to PPL.”

Greg Booth, an electric utilities expert, and Stephen A. Estrin, a construction site safety expert, both testified that PPL breached the standard of care in the electric utility industry and for construction site safety and that those breaches had led to the accident.

PPL argued that Nertavich and his employer were responsible for his safety and that Nertavich had failed to properly use the fall protection provided by his employer.

PPL did not respond to a request for comment, but spokesman Michael Wood told The Morning Call that the utility was reviewing the case to determine whether to appeal.

   

Tagged categories: Accidents; Fall protection; Health and safety; Industrial Contractors; Painters; Subcontractors; Transmission Towers

Comment from Anna Jolly, (3/29/2012, 9:29 AM)

Ah, the old argument. I am not responsible, even though I chose the lowest possible bid. What is most often missing in the lowest possible bid?


Comment from M. Halliwelll, (3/29/2012, 11:09 AM)

Although I agree that it is often safety that suffers with lowball bids, safety can be an issue anytime. I've recently received an HSE document from one company my firm does work for and it's the same idea: Our client wants to be Owner and Prime with their representative on site full-time for all the work, but the HSE document basically says the contractor is responsible for safety. Lowest bidder or not, if the owner wants to be in control on site, they need to be actively in control and enforce their safety policies instead of just "off loading" it to the contractor and then ignoring any faults in the contractor's safety program. In an ideal world, everyone on a job site would be able to identify shortcomings in the safety on site and have them corrected...unfortunately, in too many cases people a) don't know better (lack of education), b) don't care (apathy) or c) intentionally choose not to follow the rules (for convenience, schedule or budgetary reasons).


Comment from Nickolas Mullins, (4/1/2012, 9:51 AM)

Safety is ultimately every person on a sites responsibility. If you see someone doing something unsafe, you should stop them and fix it. A lanyard being used improperly ultimately serves no purpose besides looks. It's sad that bad decisions have to be the leading cause for change.


Comment from Anna Jolly, (4/3/2012, 11:14 AM)

I agree with both of you!


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