LCHC Prevails In Skylight Fall

Danny Collier successfully defended Alabama property owner sued by worker who fell through skylight in warehouse roof.  The billboard company’s employee fell through a skylight and suffered serious injuries.  The injured plaintiff filed a personal injury lawsuit against the owner of the building, and against the owner’s tenant.  After the owner filed suit against the billboard company for indemnity, the owner prevailed against the plaintiff and the billboard company.  Wadkins v. CDH, an Alabama partnership, et al. 

On April 28, 2010,  CBS Outdoor, LLC’s employee, Jeremy Wadkins, was on the roof of a building owned by CDH, an Alabama partnership, in Phenix City, Russell County, Alabama.   ECC Supply, Inc. doing business as ServPro occupied the building under a lease agreement with CDH.  A Ground Lease existed between CDH and CBS Outdoor for a billboard on the premises, adjacent to the ServPro building.  Mr. Wadkins fell through a skylight on the roof and suffered injuries.

The day before, while working on the billboard sign, CBS Outdoor’s work caused paint chips to rain down from the sign onto the ServPro premises below. ServPro called CBS Outdoor to complain.  CBS Outdoor sent Mr. Wadkins to clean up the premises on the date of the accident.  Mr. Wadkins got on the roof with a leaf blower and fell through a fiberglass skylight.  Mr. Wadkins filed suit against CDH and ECC Supply in the Circuit Court of Russell County, Alabama.  CDH filed a third-party complaint against CBS Outdoor based on a written indemnity agreement.  After discovery, CDH filed a motion for summary judgment against Mr. Wadkins; and a motion for partial summary judgment against CBS Outdoor.  The court granted summary judgment in favor of CDH and against Mr. Wadkins.  The court granted summary judgment in favor of CDH and against CBS Outdoor, with damages to be determined at a subsequent hearing.

CDH’s successful motion for summary judgment against Mr. Wadkins showed that CDH breached no legal duty.  Mr. Collier argued, as follows:

Mr. Wadkins entered the premises under the tenant’s title.  The landlord is only liable for injuries that result from latent defects about which the landlord had knowledge at the time of leasing and which the landlord concealed from the tenant.  The fiberglass roof panel (or skylight) was not a defect.  Fiberglass panels in a warehouse roof are common and perfectly safe.  Skylights are not unsafe unless or until the roof becomes someone’s walking or working surface.  In the same way, the edge of roof is never a danger so long as the roof remains a roof, and not a walking surface.

As soon as an employer puts an employee on the roof, the roof is no longer a roof but a walking surface.  At that time, OSHA requires the employer to protect its exposed employee from fiberglass roof panels or skylights, or from the edge of roof or from any other fall hazard.  CBS Outdoor, without CDH’s knowledge or permission, exposed Mr. Wadkins to the hazard of an unguarded skylight when it used CDH’s roof as a working surface.

It was then that CBS Outdoor (not CDH) violated OSHA regulations.  CDH’s skylight was not a hazard so long as it was a roof skylight.  When CBS Outdoor turned the roof into a walking surface, CBS Outdoor was obligated to guard the skylight or take other precautions.  CDH had no duty to cover the skylights or employ fall protection systems because CDH did not expose anyone to a hazard.  CDH did not invite or hire Mr. Wadkins to work on the roof.  CDH did not know of any roof work to be accomplished by CBS Outdoor.  No one sought CDH’s consent or permission.  No one notified CDH that CBS Outdoor was sending men onto the roof.  No one notified CDH that CBS Outdoor’s men were getting on the roof:

  1. Without a fall protection plan;
  2. Without a pre-job hazard assessment;
  3. Without an inspection of the roof that would become a walking or working surface;
  4. Without the use of any personal fall protection equipment;
  5. Without adequate OSHA safety training and/or roof training;
  6. Without the use of any OSHA-required safeguards; and
  7. Without the use of any CBS Outdoor-required safeguards.

CDH did not conceal the skylights from ECC Supply at the time of letting.  The existence of the skylights was obvious.  ECC Supply knew of the skylights since the pre-lease inspection.  CDH never concealed the existence of the skylights.  Since CDH never concealed the alleged defect from its tenant, CDH was not held liable for injury arising from the alleged defect.  CDH was the owner/landlord.  ECC Supply was the premises occupier/tenant.   ECC Supply operated its business on the property.  CDH’s business was that of a landlord not in possession.  Mr. Wadkins was on the roof under ECC Supply’s title as tenant.  Whether Mr. Wadkins was ECC Supply’s invitee or licensee did not change the result.  Since CDH, as landlord, concealed no defect at the time of letting, Mr. Wadkins could not recover from CDH.

CDH also got summary judgment against CBS Outdoor on its indemnity claim.  In a Ground Lease drafted by CBS Outdoor’s predecessor in interest, CBS Outdoor agreed to indemnify and hold CDH harmless against “all claims or damages to person or property by reason of accidents resulting from the negligence or willful acts of [CBS Outdoor’s] agents, employees, or workmen in the construction, maintenance, repair or removal of its signs.”  In order to clean up debris after a sign removal project under the Ground Lease, CBS Outdoor put two of its own employees on the roof of the building, exposing the employees to skylights.

Roof with skylights

Mr. Wadkins was one of those CBS Outdoor employees exposed to the skylights.  Skylights in roofs – when they become an employee’s walking or working surface – are hazards known and recognized by OSHA and by CBS Outdoor, requiring specific fall protection safeguards.  CBS Outdoor admitted that it violated OSHA regulations and its own fall protection policy.  CBS Outdoor admitted that the violation resulted in Mr. Wadkins’ injuries when he fell through an unguarded skylight over 20 feet to the concrete floor below.

Mr. Wadkins’ suit against CDH, flowing from the negligence of CBS Outdoor, triggered the indemnity agreement found in the Ground Lease.  CBS Outdoor was in full control of its employees.  CBS Outdoor was in full control of workplace safety, training, supervision and the events of April 28.  CDH had no knowledge, no input and no control.  CDH exposed no employee to an unguarded skylight.  This was a case of indemnitor control and culpability.  It was a case of indemnitee innocence.  CBS Outdoor admitted breaching the following duties:

1. OSHA 1926.501(b)(1) and CBS Outdoor’s duty to have fall protection:

“Each employee on a walking/working surface (horizontal and vertical surface) with an unprotected side or edge which is 6 feet (1.8 m) or more above a lower level shall be protected from falling by the use of guardrail systems, safety net systems, or personal fall arrest systems.”

2. OSHA 1926.501(b)(4) and CBS Outdoor’s duty to have fall protection for holes in walking surfaces:

“Each employee on [a] walking surface shall be protected from falling through holes (including skylights) more than 6 feet above lower levels, by [personal fall arrest systems], covers, or guardrail[s] erected around holes.”

3. OSHA 1926.501(a)(2) and CBS Outdoor’s duty to ensure structural integrity:

“The employer shall determine if the walking/working surfaces on which its employees are to work have the strength and structural integrity to support employees safely.  Employees shall be allowed to work on those surfaces only when the surfaces have the requisite strength and structural integrity.”

4. OSHA 1926.501(b)(10) and CBS Outdoor’s duty to have fall protection on low-slope roofs:

“Low-slope roofs (equal or less than 4 on 12) with unprotected sides and edges 6 feet or more above lower levels shall be protected by Guardrails, Safety Net or Personal Fall Arrest or one of these systems combined with a Warning Line or Warning Line and Safety Monitor.  On roofs 50-feet or less in width a Safety Monitor alone is permitted.”

After CDH got summary judgment against Mr. Wadkins and CBS Outdoor, Mr. Wadkins filed a motion for the trial court to reconsider its decision.  While the motion was pending the parties resolved the case at mediation.  CDH paid nothing.  CBS Outdoor reimbursed CDH 75% of its attorney’s fees and expenses.  CBS Outdoor and ECC Supply paid to settle with Mr. Wadkins.  On December 22, 2015, the court dismissed the case with prejudice.

Danny Collier practices in Alabama and Mississippi.