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Pennsylvania Jury Finds A Commercial Property Owner Liable For Construction Accident Over the Hired Construction Company

February 3, 2016

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<span style="line-height: 115%; font-family: 'Times New Roman','serif'; font-size: 12pt;"><span style="color: #000000;">Carbon County, Pennsylvania is home to a piece of Blue Mountain, which is one of the most popular ski and snowboarding destinations in the tristate area. Recently, a Carbon County jury awarded the county’s highest reported verdict of $1.2 million against Blue Mountain Ski Resort’s owner, The Tuthill Corp., in <a href="http://blog.wcmlaw.com/wp-content/uploads/2016/02/Bortz-v.-Tuthill.pdf" rel=""><u><span style="color: #000080;">Bortz v. Tuthill</span></u></a>. </span></span>
<span style="line-height: 115%; font-family: 'Times New Roman','serif'; font-size: 12pt;"><span style="color: #000000;"> </span></span><span style="line-height: 115%; font-family: 'Times New Roman','serif'; font-size: 12pt;"><span style="color: #000000;">In September 2011, Bortz had been working on a project to widen one of Blue Mountain’s slopes. On the day of the accident, Bortz was operating an articulating hauler truck that was carrying a load of soil. Bortz ascended 25 feet up the mountain, and at some point, decided to back down a steep embankment. Bortz descended 30 feet down, struck a ski lift tower, and was ejected from the truck through a window. The truck then landed on Bortz. </span></span>
<span style="line-height: 115%; font-family: 'Times New Roman','serif'; font-size: 12pt;"><span style="color: #000000;">Bortz had apparently expressed concerns to his coworkers that the project was dangerous; specifically that the slope of the hill on which they maneuvered the trucks was too steep. Bortz’s estate claimed that before the accident, Bortz had numerous unsuccessful attempts at maneuvering the truck on hill. After his first successful attempt, supervisors left the area.</span></span>
<span style="line-height: 115%; font-family: 'Times New Roman','serif'; font-size: 12pt;"><span style="color: #000000;"> </span></span><span style="line-height: 115%; font-family: 'Times New Roman','serif'; font-size: 12pt;"><span style="color: #000000;">Bortz’s estate pursued a theory of negligence against Blue Mountain, arguing that Blue Mountain prepared the slope for the workers before the work commenced by leveling it off, leaving a slope grade that too steep per industry standards. Bortz’s estate also argued that Blue Mountain suggested Bortz use the method of backing down the hill, thereby forcing Bortz to operate a truck on a slope that was beyond the truck’s capabilities. Blue Mountain countered that Bortz’s employer, Livengood, was an expert in its field and bore ultimate responsibility for the equipment and safety details of the project. Blue Mountain also suggested that Bortz did nothing to mitigate the trucks descent, as there was no evidence of brake activity. Further, Blue Mountain disputed Bortz’s cause of death, citing record evidence indicating that Bortz may have suffered a heart attack during the incident.</span></span>
<span style="line-height: 115%; font-family: 'Times New Roman','serif'; font-size: 12pt;"><span style="color: #000000;"> </span></span><span style="line-height: 115%; font-family: 'Times New Roman','serif'; font-size: 12pt;"><span style="color: #000000;">In the end, Bortz’s estate persuaded the Carbon County jury that Blue Mountain exercised control over Bortz’s work, so much so that Blue Mountain was found 71% liable while Bortz was found only 29% liable for the fatal accident. The jury awarded Bortz’s estate $341,250 on the wrongful-death claim and $879,009 on the survival claim.</span></span>
<span style="line-height: 115%; font-family: 'Times New Roman','serif'; font-size: 12pt;"><span style="color: #000000;"> </span></span><span style="line-height: 115%; font-family: 'Times New Roman','serif'; font-size: 12pt;"><span style="color: #000000;">This verdict reminds businesses to be very cautious in their level of involvement when commencing a construction project. A business may believe that partaking in certain aspects of project amounts only to “being helpful” and that the hired professionals hold the reins. However, as shown in Pennsylvania, a jury may disagree.</span></span>
<span style="line-height: 115%; font-family: 'Times New Roman','serif'; font-size: 12pt;"><span style="color: #000000;"> <a href="http://blog.wcmlaw.com/wp-content/uploads/2016/02/Bortz-v.-Tuthill.pdf" rel="">Bortz v. Tuthill</a></span></span><span style="line-height: 115%; font-family: 'Times New Roman','serif'; font-size: 12pt;"><span style="color: #000000;">Thanks to Rachel Freedman for her contribution to this post. </span></span>
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