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KONICEK v. LOOMIS BROS.6/20/1990
The plaintiff here is an employee of an independent contractor. A general contractor hired the plaintiff's employer to roof a building under construction. The plaintiff fell while working on the roof and sustained severe injuries. The plaintiff then sued the general contractor. At trial the district court submitted to the jury four theories of recovery. Answering special verdict forms as to each theory, the jury found that the plaintiff had established all four of them.
The general contractor has appealed, claiming that none of the theories should have been submitted to the jury. We consider only one theory because we think there was sufficient evidence to support a verdict on that theory. We therefore affirm.
In April 1985 Loomis Brothers, Inc. — the defendant — contracted with Cornell College in Mount Vernon to build a sports learning center. The contract provided that Loomis would act as the general contractor of the project.
Loomis then subcontracted with Cliff Abild Construction Co. to roof the center. Gary Konicek — the plaintiff — was a construction employee of Abild.
The roof was designed to have between sixty-eight to ninety skylights, and each skylight was to measure two feet by eight feet. These skylights were not placed in a simple, regular pattern in one area of the roof. Instead the skylights appeared in an irregular pattern over the entire roof.
It was about forty feet from the top of the roof to the ground. The roof was fairly flat.
When Abild came on the job site, about three-quarters of the steel decking for the roof was in place. The holes for the skylights had been made in the decking.
Before Abild began its work, James Caswell — Loomis' construction superintendent — asked Abild's foreman if Abild was going to cover the exposed skylights. The foreman insisted the roofing could not be done with the skylights covered. So when the Abild roofers began their work, no covers or protective devices were used.
While Abild was working on the facility, Loomis employees laid soundproofing insulation on the roof. After this insulation was in place, Abild employees laid a vapor barrier over the insulation to keep the wind from blowing out the insulation. A vapor barrier consists of six-foot-wide strips with tinfoil on the top and brown paper on the bottom. Once the vapor barrier was in place, Abild employees would then install the remaining roofing layers.
Konicek testified to the procedure the roofers used to lay the vapor barrier:
Just started wherever the roll was at, either at the top or the bottom. Somebody would hold it down at the bottom or tape it at the top. You can tape [the vapor barrier] and roll it. You can start taping up your seams and you just run it out the full length of the roof, cut it off and finish taping it and turn it around and come back down.
Because the vapor barrier covered the skylight openings, the roofers would cut out the openings so that the openings could be seen.
Shortly after Abild began working on the roof, another Abild roofer, Donnie Ellison, fell through a skylight while laying the vapor barrier. Ellison stepped through a skylight that he had just covered with the vapor barrier. Ellison was able to catch himself on an X-brace in the corner of the skylight and avoided falling to the ground. [457 NW2d Page 616]
Immediately after this incident, Konicek told his foreman, Dennis Burkle, that some protective measures were needed. Konicek suggested covering the skylights with a support platform that would attach to the inside of the skylights. Burkle, however, did not follow Konicek's suggestion.
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