By Correy E. Stephenson
Staff Writer
A Colorado jury awarded a 24-year-old utility lineman more than $39 million after he was rendered paraplegic when a rotted utility pole collapsed while he was 25 feet in the air.
Andy Blood sued Qwest Communications International, for failing to maintain the pole.
"It came out at trial that not only had this one pole never been inspected in its 46 years in place, but with just a few exceptions, none of Qwest's poles had ever been inspected," said attorney William Keating, a partner at Fogel, Keating, Wagner, Polidori and Shafner in Denver, who represented the plaintiff.
During discovery, Keating learned that the pole had rotted from the inside, caused by a fungus that began below ground and was therefore not visible to Blood or other utility workers.
"We put their own witnesses on the stand and they agreed that they had the obligation to establish a preventative maintenance program, but that never happened," Keating said.
Given that Qwest owns approximately 157,000 poles in Colorado, a lineman's job suddenly becomes similar to "Russian roulette," he added.
"Any of these other poles could fall down, bring down lines and cause serious injury or death, and because the rot begins below ground, there is no way to know without inspection."
Qwest attorney Rob Zavaglia declined to comment on the case, referring all questions to a company spokesperson, who indicated that Qwest plans to appeal.
Below ground rot
Blood was approximately 25 feet in the air on June 29, 2004, removing the lines from the pole when it collapsed. He was immediately paralyzed, suffering multiple fractures in his leg and pelvis.
The pole in question was manufactured in 1957 and put into service the next year, used to support both telephone wires and high voltage power lines.
Because of workers' compensation laws, Blood couldn't sue his own employer, Public Service Co. of Colorado. But Public Service and Qwest had signed a contract in 1960 stating the two companies would share use of the poles, and Qwest would be responsible for inspections and maintenance. However, the company never established a maintenance program, and the pole Blood was on had never been inspected.
At trial, Keating showed an actual cross-section of the pole, which clearly showed the decay. He showed jurors how the outer shell looks solid even though the inner circle is decayed from fungus rot.
A routine inspection program that included the evaluation of core samples would have revealed the rot, and maintenance crews could have stopped the rotting process by injecting fungicides into the pole.
To make his case to the jury, Keating called an unusual witness: a wood scientist.
"The preservation and maintenance of utility poles is actually a huge area of research and writing," he said, noting that conferences are held all over the world and many major universities support scientific research into the subject.
Since these poles cost utilities about $2,000 each, an inspection and maintenance program can actually save a company money over time.
A complex defense
Keating said the case was complicated by the response to the accident by Blood's employer.
After the accident, Public Service performed an internal investigation. An upper-level executive at the company determined that safety violations had occurred and issued two letters to that effect.
At trial, the defense used those letters to argue that Qwest was not liable because of the public safety violations committed by Public Service.
"Our view was that there weren't any safety violations," Keating said.
The safety rule at issue concerned whether the workers in the field were required to use external support for the utility pole when it was being stripped. Keating argued to the jury that the executive's interpretation of the safety rule was incorrect, and that the men on the job had never interpreted the rule to require external support where the pole appeared to be self-supporting and structurally sound.
The plaintiff and his wife, Carrie, also testified at trial. The couple had been married shortly before the accident and she was forced to quit her job to care for her husband. Keating said their testimony helped sway the jury.
"I think that if a jury views the plaintiffs as people doing the best they can under the toughest of circumstances and not just complaining, they treat them better," he said.
Damage caps cut verdict
Keating was also forced to frame his request for damages with Colorado damage caps in mind. Non-economic damages, such as pain and suffering, are capped at $732,500, which was increased from the original $500,000 cap based on inflation and cost of living and punitive damages are limited to a 1:1 ratio to compensatory damages. So Blood's $1 million award for non-economic losses will be trimmed and the $18 million punitive award may also be reduced.
The punitive cap does have an exception, however: treble damages may be awarded at the judge's discretion if it is determined that the defendant's conduct continued after the litigation started, Keating explained.
Although rarely approved, Keating plans to file a motion for treble damages.
"Even in the three years since this accident, Qwest still has not started an inspection program," he said. "There are still poles out there that may be rotted."
Keating said that after the trial, the seven-person jury talked with all of the lawyers, emphasizing that their punitive award was intended to send a message to Qwest.
"They said that the amount wasn't important, but they wanted to send a message to Qwest that it needed to start an inspection and maintenance program."
* * *
Plaintiff's attorneys: William L. Keating and Michael O'Brien Keating of Fogel, Keating, Wagner, Polidori and Shafner in Denver.
Defense attorneys: Thomas N. Alfrey and Robert J. Zavaglia, Jr. of Treece, Alfrey, Musat & Bosworth in Denver.
The Case: Blood v. Qwest Communications International; May 24, 2007; Denver District Court; Judge Sheila A. Rappaport.
Reprinted with permission from Lawyers USA. You can get a free trial subscription to Lawyers USA by visiting lawyersusaonline.com or calling 800-451-9998.
© 2007 Lawyers Weekly Inc., All Rights Reserved.
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June 18, 2007
