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Danger, Keep Off!

Publication Date: October 2005
Volume: 41-2
Author: Lee Tucker
Categories: Verdicts & Settlements, Liability, Photograph/Illustration, Safety Hazards/Standards

April 1, 2002 was a typical day on the job for Martin Ruiz Diaz, a janitor at the Wells Fargo Center located at 999 Third Avenue in downtown Seattle. Following a morning of basic maintenance, cleaning and building upkeep, Martin was instructed by management to remove debris around an outside area surrounded by planters. The area was next to a 32’ x 23.5’ x 22’ triangular metal grate situated outside the northwest corner of the building. (See photograph that accompanies this article). The triangular metal grate was made up of several long, individual sections.

After clearing the area of leaves and trash, Martin proceeded toward what he assumed to be a piece of square wood that was leaning up against the side of the planter boxes surrounding the metal grating. Stepping forward on top of the grate, the ground fell out under him as a 60-pound metal grate slipped forward, smashed Martin in the face and sent him falling 8 feet into the deep pit below, which harbored an air ventilation shaft. Martin landed on the cement floor of the pit, with his lower back and buttocks taking the brunt of the fall. Building security was immediately on site, having heard the loud thud of Martin’s fall from their office below. A dazed and bewildered Martin found himself rushed to Swedish Medical Center by building engineers, where he was found to have sustained a broken nose, numerous cuts, bruises and abrasions, a sprained ankle and a lower back injury, which would worsen as the days passed. Eventually, he required an L5-S1 fusion surgery as a result of his low back injury.

Martin Ruiz Diaz

Martin was born in Mexico in 1964. After graduating from high school, like many immigrants, Martin traveled to the United States in search of a better life. An industrious man from the start, Martin worked several jobs as a truck driver and was thankful to land a job that afforded him the opportunity to travel and see much of the United States. A proud father of six, and the adoptive caregiver to his nephew with cerebral palsy, Martin and his partner, Gloria, a full-time nanny for a Seattle couple, had resided in Seattle for 16 years prior to his injury.

At the time of the fall, Martin was 38, and employed by Metropolitan Building Maintenance, a third-party vendor for defendant Equity Office Management. Though physically unable to return to his full-time job as a janitor after his fall, Martin never faltered in his duties as a father. In order to survive and support his family, Martin attempted to return to work part-time (with restrictions), and was interviewing for less physically demanding jobs right up until the day of trial. With a quiet, yet strong confidence, Martin never gave up hope, and carried with him a sense of pride and commitment that I will never forget.

Procedural History

After Martin’s June 2003 back surgery, settlement of Martin’s claim was attempted directly with defendants’ self-insurer, Gallagher Basset Services, located in Illinois. In the end, however, Gallagher Basset refused to make an offer. Martin thus filed suit in King County Superior Court in January 2004. Matthew Turetsky of Schwabe Williamson and Wyatt appeared for defendants, and quickly had the case removed to the Western District of Washington. Trial was set for June 13, 2005.

This was my first case in Federal Court, and every step was a new foray. Early on, I received a great deal of guidance from several WSTLA EAGLE members, including Ann Deutscher, and I am very grateful for their help.

Discovery was limited to 10 depositions per party and 25 interrogatories per party without permission from the court.

Plaintiff ultimately filed a motion for summary judgment on the issue of liability, and in response, defendants conceded that Mr. Diaz was “fault free.” However, it was clear that the defendants would attempt to blame others.

In February 2005, Kevin Coluccio of Stritmatter Kessler Whelan Withey Coluccio was associated as cocounsel for the plaintiff. Together we attempted to mediate the case on March 10, 2005. By the time of mediation, most of the discovery was completed and depositions taken; however, plaintiff’s motion for summary judgment was still pending and there were a number of plaintiff’s discovery requests that remained unanswered. (Plaintiff’s counsel continued to pressure the defendants up until the date of the second mediation, which occurred on June 2, 2005, before the Honorable Mary Alice Theiler.) The mediation failed.

The trial judge, James Robart, ultimately ruled in favor of the plaintiff on summary judgment on the issue that the defendants could not allocate any fault to the original builder of the property based upon expiration of the 6-year statute of limitations. However, defendants filed a motion for reconsideration regarding the issue of whether defendants could still attempt to allocate fault to other third parties, and the court reversed its original ruling. Kevin Coluccio was an integral part in formulating plaintiff’s response to defendants’ motion for reconsideration. Together, we worked up the case, prepared witnesses, jointly filed lengthy motions in limine and responses to defendants’ motions in limine, and prepared over 100 trial exhibits to be used at the June 13, 2005 trial.

Treating Doctors and Plaintiff’s Expert Witnesses

Mr. Diaz was very fortunate to have received exceptional medical care. Tanya Smith, M.D., was his family doctor, and she first treated Martin on April 1, 2002. She referred him to physiatrist, Irene Young, M.D. at Northwest Spine and Sports Physicians, P.C. After several months of conservative care, including physical therapy and facet and lumbar injections, Dr. Young referred Martin to a neurosurgeon, Jayashree Srinivasan, M.D., of Neurosurgical Consultants of Washington.

Other experts for the plaintiff included Gary Sloan, Ph.D. (human factors); Theodore Becker, Ph.D. (physical capacities); Merrill Cohen (vocational rehabilitation); and Robert Moss (economic loss expert). Defendants retained William Skilling as their vocational expert and James Green, M.D., as their CR 35 defense medical examiner.

Liability

After the depositions of Martin’s co-worker, two security guards, two senior property managers who worked for defendant, and four defendant engineers, it became clear why Martin fell through the metal grating.

The senior engineer testified that he attempted to secure the individual sections of the metal grates together as early as 1990 when he worked for a previous owner of the building. (At that time, the Wells Fargo Center was known at the First Interstate Center.) This engineer tied off the individual sections of the grates with plastic zip ties. In 1990, the same engineer also placed a 2’ x 2’ warning sign on the grates, which read: “Danger/Keep Off” in red and white large print.

On April 1, 2002, this exact warning sign would serve as the ironic final piece of debris Martin would attempt to retrieve prior to his fall. It had apparently blown off the grate and come to rest against the edge of the planter boxes, with the “danger” sign facing away from Martin. This was Martin’s first time cleaning this area, so he had no prior notice of the hazard or of the warning sign.

Defendants’ engineer explained that he only secured the individual grates together and the warning sign to the grates with plastic zip ties because transients or homeless persons had been seen trying to lift the grates and get down below into the pit to keep warm. By tying the individual grates together, he reasoned, it would be impossible for transients to lift the individual sections of the grates to access the pit because the tied-together grates would be too heavy. He also stated that it was defendants’ policy to have security guards ensure that the individual sections of the grate were securely fastened together with plastic ties. In addition, he said, it was also defendants’ policy to ensure that these same plastic ties were used to secure the warning sign to the metal grate. However, in later depositions, none of the security guards were even aware that this alleged policy existed. By placing a warning sign on top of the metal grates, defendants believed that transients would be afraid to go near the grates.

Plaintiff discovered that defendants’ engineers also periodically cleaned the pit below the metal grates. To do this, they cut loose the plastic zip ties and lifted the individual grates so that an opening large enough for them to place a ladder down into the pit was created to allow them access to the pit. Engineers testified that each and every time they cleaned the pit, the grates were carefully put back in place and the plastic ties re-secured.

After Martin fell, defendants immediately implemented a much stronger and more secure system to keep the grates in place. They ordered metal clamps and bolts from a catalog and drilled holes in the beams running across the top of the pit where the metal grates rested. This allowed them to securely fasten the individual sections of the grates with an entirely new security system. They photographed these changes the day after Martin fell.

Only after plaintiff’s liability expert, Gary Sloan, Ph.D., was deposed in late January 2004, did defendants fully disclose their novel defense. Defendants alleged that the original builder and architect of the Wells Fargo Center were at fault for the failure of the metal grates. In addition, defendants alleged that the designer of the metal grates was also at fault. Defendants, however, made it clear that they were not negligent under current Washington law governing property owners. They alleged that plaintiff had to demonstrate that defendants knew or should have known of the dangerous condition of the metal grating. Defendants were prepared to allege that they did not know and could not have known that the grates were loose or could become so.

Defendants could not, however, produce any evidence or witnesses at trial to support their alleged defenses, aside from blueprints of the original design. Their blueprints, however, did not match up with the measurements of the grate in place at the time of Martin’s injury. Thus, plaintiff’s counsel filed motions in limine to prohibit the defendants from even presenting their arguments that the builder, the architect and the designer of the grates were contributorily negligent.

We planned to argue that the defendants failed to adequately secure the metal grating and should have known of the danger. We also intended to argue that it was economically feasible for defendants to more adequately secure the grates and/or the warning sign.

Medical Causation

Martin incurred $134,000 in medical expenses. The Department of Labor and Industries paid for his treatment and claimed a significant lien.

Plaintiff’s treating physiatrist, Dr. Young, and treating neurosurgeon, Dr. Srinivasan, testified in deposition and via narrative reports that Martin’s injuries, and specifically the lower back injury which required the L5-S1 fusion, were proximately caused by his April 1, 2002 fall.

It was frustrating, yet professionally satisfying, to take the video deposition of defendants’ CR 35 examiner, James Green, M.D. Dr. Green testified that Martin’s injuries were pre-existing, and that because there was a ten-day delay, from April 1, 2002 to April 11, 2002, in reporting back pain in his medical records, there was no way to opine on a more probable than not basis that the 8-foot fall into the concrete pit proximately caused Martin’s low back injury and resultant surgery.

Although Dr. Green was correct that Martin had a pre-existing spondylothesis at L5-S1, as Martin’s treating doctors earlier stated in their reports, the condition was clearly asymptomatic prior to the fall, both according to Martin’s treating physicians and to Martin’s deposition testimony.

Martin never had any back complaints or any medical treatment for his back prior to April 1, 2002, and the defendants had no evidence to refute this.

As for Martin’s future prognosis, Dr. Srinivasan testified that Martin had a 15% chance of a future surgery as a result of his April 1, 2002 fall, and Dr. Young concluded that Martin sustained a Category III permanent impairment.

Wage Loss

As noted above, Martin was physically unable to return full-time to his job as a janitor at the Wells Fargo Center after his fall. After many fruitless attempts to work part-time with restrictions, Martin stopped working completely in early 2003, a few months before his back surgery. Eventually, he was able to earn minimal wages through the Department of Social and Health Services by caring previously and continually for his adopted nephew, Eric, who was afflicted with cerebral palsy.

Martin continued interviewing for jobs right up until the day of settlement; however, he remained unemployed and very frustrated. On every job application, Martin was required to disclose the back injury he sustained at the Wells Fargo Center. As might be expected, he was not hired.

Defendants alleged that Martin could find trucking or delivery work, extra care-giving work, or some other suitable employment even with a fused lower lumbar spine. Thus, defendants contended Martin sustained no future economic loss. Martin earned $9 an hour at the time of his fall. Martin’s past wage loss was close to $30,000. Plaintiff planned to allege impaired future earning capacity at trial.

Settlement

Judge James Robart ordered the parties to a second mediation with the Honorable Mary Alice Theiler on June 2, 2005. Defendants’ corporate representatives petitioned to appear only by telephone; however, Judge Theiler ordered defense representatives to travel from Chicago to Seattle for the settlement conference. The settlement discussions began at 10 a.m. and ended close to 10 p.m. Judge Theiler was able to convince defendants during those twelve hours that they had substantial risks regarding liability. Defendants had denied fault right up until the time of the settlement conference.

Both parties had to make some significant concessions; however, the difference between the first and second mediations was remarkable. Ultimately, settlement was achieved.

A representative from the Department of Labor and Industries was also present during the entire settlement conference and agreed to the settlement, which satisfied their lien.

Martin Ruiz Diaz v. Equity Office Management LLC and EOP Northwest Properties, LLC was resolved on June 2, 2005, 11 days prior to trial. The amount of the settlement is confidential.

Lee Tucker, WSTLA EAGLE member, practices with Scott Blair at The Blair Firm in Seattle, Washington. Their practice focuses on catastrophic injuries, work related injuries, automobile negligence, bicycle accidents, premises liability, and insurance issues.