A 7-person Leelanau County jury last week ruled that a construction worker was not due compensation from the owner of a concrete company who helped cover a stairwell with a sheet of foam that eventually gave way, leading to a 17-foot fall.

The jury met for three hours just after the Enterprise's deadline before reaching an unanimous verdict. They had viewed five days of testimony.

The jury could not move beyond the second of 20 questions it was asked to answer in a complicated 7-page verdict questionnaire: "Did Carl S. Shemwell (doing business as) Americrete create a new hazard that was independent of its contractual duties."

That "hazard" was the foam sheet stepped on by construction worker Joseph L. Lapan. His attorney, Lea Ann Sterling of Empire, had earlier that day in her final argument told the jury that Lapan would never work in construction again.

"You are the conscience of the community," she said. "You can protect other construction workers."

But lead defense attorney Todd W. Millar objected to her second sentence, which was stricken from the record, in a minor decision that was nevertheless representative of the legal hurdles needed to convince jury members that a subcontractor on the BayView development work site in Suttons Bay was liable for an injury to another subcontractor's worker.

"Where this is going is of great concern to all of us in northern Michigan," said Sterling.

Millar, however, said the trial served to identify general contractors as responsible for safety at construction sites. In the trial ending last Wednesday, May 23, Americrete was held not responsible for Lapan's fall, while Livingston Building Company and Suttons Point Development had settled their liability for a combined $300,000. A fourth company named in the suit, Martinek framing, reached a $17,000 settlement.

Lapan was an independent contractor working for his brother's firm, By Heart, Inc., on Feb. 1, 2005, according to testimony heard by jurors. Americrete and other subcontractors were under the gun by Marcus Yono, an owner of Livingston Building Co. and Suttons Point Development, to work more quickly. Yono and Wayne M. Cockrum, whom Bageris identified as Yono's top assistant on the site, were named as individuals in the original lawsuit. They were eventually dropped from litigation.

"One of the big problems we had on that site was keeping pace on work as Mr. Yono wanted," said Bill Bageris, who added that his role was to "put out fires" at the massive development. He no longer works there.
Testimony also showed that general contractor Livingston Building Company and all but one subcontractor on the site offered neither safety programs nor safety policies.

"My opinion is Livingston left that up to the subcontractor’s responsibility," said Bageris.

Americrete was pouring concrete in the off season, requiring that heaters be brought into framed-in condominium complexes at BayView to speed along curing. The foam board was placed on an overhead opening by Carl S. Shemwell, owner of Americrete, and a co-worker.
Joe and Tom Lapan were both aware of the danger it presented, according to testimony.

"I feel sorry for what happened," said Shemwell. "I didn't think anybody would step on it."

It was eventually left up to jurors to decide liability — but not for all four businesses originally involved in the litigation. Only the actions of Americrete were on trial as Livingston Building Company, Suttons Point and Martinek had reached settlements, facts that could not be revealed to jurors.

A fifth company, By Heart, was not sued by Lapan for two reasons, Sterling said. First, it is owned by Joe Lapan's brother Tom.
Secondly, the worker's compensation insurance which Joseph and his wife, Julie, are living on is offered through By Heart. It would have a viable defense in arguing that the insurance package provided the sole remedy for By Heart's liability, Sterling said.

Jurors were told by an expert witness that Lapan, 51, had lost $65,534 in wages by the time the trial started, and could expect to lose $631,839 in future wages should he retire at 66. They were also asked to consider pain and suffering damages as Lapan's left elbow had been fractured in three places, and he suffered a ruptured disc that had to be fused.

During the trial Lapan would often rise from his seat, walk gingerly to the back of the Leland courtroom, and stretch his back.

Julie Lapan was also seeking damages for lost activity with her husband.

The basis had been set for a steep liability award.

But jurors also viewed a tape offered by the defense showing Lapan carrying a bag of groceries into his house, and wiping the windshield of his car with his left arm.

The tape probably had little impact on the jury, Millar said. He was not surprised by the verdict given testimony provided and the precedence of past cases.

While Sterling discussed a snowplowing case in which a subcontractor was found to be liable for damages to a parking lot, the defense brought up its own snowplow case finding a subcontractor not to be liable as long as the firm followed specifications within its contract.

"If you don't create a new hazard outside of the contract, you can't create a hazard to a third party," Millar said, repeating what he had told the jury.

After the trial, Millar said the decision by Americrete to go to court held risks, but was well founded in legal precedence.

Lapan's damages had been set at $900,00 through an earlier arbitrator's ruling, of which Lapan himself was shown to be responsible for $300,000. That left $600,000 to be paid by the four remaining defendants. The arbitrator placed Livingston Building Company's damages at 40 percent, or $240,000 — the same level as suggested for Americrete.

Damages assigned to Suttons Point, as "owner/developer" of the project, and Martinek were both set at 10 percent, or $60,000.
Martinek reached an agreement to pay $17,000, while Livingston Building and Suttons Point both accepted the arbitrator's decision.
Americrete, however, did not settle. According to court rules, should it have lost the case and been levied damages of 10 percent or more than the arbitration ruling, Americrete would have been responsible for all court costs and Lapan's attorney fees.

"On hindsight, which is 20-20, it was a good decision," said Millar of carrying the case to a jury trial. He is a member of the Smith, Haughey, Rice and Roegge law firm in Traverse City.

Sterling said she is reviewing the case to determine if an appeal would be successful.