 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Kimbark v. Metal Deck Specialists11/20/2003
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Frederick Kimbark died after falling through a hole in a metal roof at a construction site where he was working. His sons prevailed in an action for wrongful death, negligence per se and survivorship against defendants including Metal Deck Specialists, Inc. (Metal Deck), the subcontractor which cut the hole, and McCrary Construction Company (McCrary), the general contractor on the project. Metal Deck appeals, contending it owed no duty to Kimbark or, alternatively, properly discharged its duty. Respondents cross-appeal, arguing the trial court erred in granting a partial directed verdict dismissing their claim for punitive damages. We affirm.
STATEMENT OF THE CASE
On October 13, 1999, a complaint for wrongful death, negligence per se and survivorship was filed by Paula Kimbark, as guardian for Kimbark's sons Cameron and Clinton Kimbark, and John Kimbark, the personal representative of Kimbark's estate. The complaint named as defendants McCrary, Horizon Sheet Metal, Inc. (Horizon), Protection Plus, Judith P. Martin, and Does 1 through 55; Metal Deck was subsequently substituted for Doe 1. The complaint alleged that the defendants negligently caused Kimbark's death by breaching duties of care relating to safety at the work site and that the defendants committed negligence per se by violating provisions of the California Code of Regulations concerning the guarding and covering of roof openings. On May 11, 2000, the cause of action for negligence per se against Horizon Sheet Metal was voluntarily dismissed and the entire complaint was voluntarily dismissed as to Judith P. Martin and Protection Plus.
Jury trial began with voir dire on September 10, 2001. The evidentiary phase of the trial concluded on September 28. On October 1, Metal Deck moved for a non-suit/directed verdict on the basis that it had no duty to Kimbark, as well as that Kimbark's death was a result of a superseding cause. It also joined McCrary's motion for a partial directed verdict on punitive damages. The motion for a partial directed verdict was granted on October 2, 2001; the other motion was denied, albeit without direct reference to the duty issue.
On October 4, the jury returned a special verdict finding each of the defendants negligent, with the fault apportioned 45 percent to McCrary, 30 percent to Metal Deck and 25 percent to Kimbark. The jury found that Horizon's negligence did not cause Kimbark injury. Economic damages were assessed at $390,600 and non-economic damages at $781,200, for a total of $1,171,800. Judgment was entered on October 22, 2001.
On November 7, Metal Deck filed a motion for judgment notwithstanding the verdict in which it argued it owed no duty to decedent and did not breach any such duty. This motion was denied on December 21, 2001.
Metal Deck filed a timely notice of appeal on December 21, 2001. On January 10, 2002, respondents filed an amended notice of cross-appeal from "that portion of the judgment directing a partial directed verdict re: punitive damages against plaintiffs."
STATEMENT OF FACTS
In 1998, McCrary entered a contract for construction of a gymnasium and a classroom building for the Orinda Unified School District. The contract called for McCrary to be "solely responsible for construction means, methods, techniques, sequences, procedures, supervi
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 California Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|