Cole, Scott, & Kissane P.A.‘s Construction Practice Group is proud to announce a very significant result it recently obtained for a client. Specifically, the firm’s construction law attorneys recently obtained a no liability / zero liability finding in a multi-million dollar arbitration in Ft. Myers on behalf of a bridge contractor in a negligence case.
David Salazar and Brad Sturges obtained the no liability finding on behalf of our client in the negligence case. This case concerned a multi-party, complex catastrophic personal injury claim that arose from a construction project. The plaintiffs, a young child and his mother, were awarded 80% of $36,700,000.00, which amounts to $29,360,000.00 to the plaintiffs from our client’s co-defendants. Cole, Scott, & Kissane P.A.’s client was the only defendant found not liable.
This matter arose from a very large road construction project on Florida’s west coast. On the date of the incident, the principal plaintiff, who was three years-old at the time, was pulled by his aunt on a red wagon to the supermarket on a sunny afternoon. The aunt, who was 17 years old at the time, traversed into an active construction site while pulling the child on the wagon. The plaintiffs claimed — per contractual, administrative, and industry standard maintenance of traffic requirements –- that there should have been a “Sidewalk Closed” sign at the intersection where the construction commenced, but it had been knocked over.
The plaintiffs claimed the aunt would not have gone onto the construction site if the sign had been up. While traversing through the construction zone, the child darted off and ran into oncoming traffic. He was hit and run-over by a driver who was convicted of leaving the scene of an accident. Tragically, the child coded on the scene three times.
Thereafter, the child was in a coma for several months. He was diagnosed with traumatically-induced cerebral palsy, a traumatic brain injury, persistent seizures, cognitive impairment, fractured skull bones, a fractured femur, fractured ribs, kidney failure, clubbed feet and hands, and pulmonary complications, among other things. His life-care plan expert and economist testified that approximately his life-care plan has a present value of $35,000,000.00 and future value of $100,000,000.00.
The plaintiffs argued that all defendants had maintenance of traffic duties and a duty to warn the aunt and child on the date of the incident. Our client’s subcontract set forth multiple maintenance of traffic responsibilities, even though it was a bridgework subcontractor. Our crane operator witnessed the incident and theoretically could have warned the aunt and child of the oncoming traffic and dangerous conditions on the construction site.
We argued that the maintenance of traffic contract language was a mutual mistake, i.e., unintended boiler-plate provisions, and elicited undisputed testimony in support thereof. We also proffered circumstantial evidence regarding the course of dealings that conclusively established that our client did not, and was not supposed to, engage in any maintenance of traffic, with the exception of putting signs and barricades where they were upon mobilizing and demobilizing on and off the project. Our knowledge and experience with construction contract documents, schedules of values, change orders, and daily reports, among other things, allowed us to efficiently identify and utilize this evidence without having to hire an expert to do so.
We also established that, during the times when the child and aunt were on the site, our client was not in the process of mobilizing or demobilizing. We utilized parol evidence principles, contract interpretation principles, and Florida common law on how the construction contract forms the subcontractor’s duties to third parties on the construction site. We also argued that Florida case law extinguishes a duty to warn for open and obvious dangers such as oncoming traffic.
The arbitrator agreed with our theories, and an awarded a finding of no liability on behalf of our client.