Danny J. Collier Jr.'s Legal Cases (6)

Personal injury

Jeremy Wadkins v. CDH, an Alabama Partnership, et al

Dec 22, 2015

OUTCOME: CDH, Mr. Collier's client, prevailed: skylights become hazards when the roof becomes a walking or working surface.

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, Alabama. ECC Supply, Inc. dba 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 ServPro 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 demonstrated that CDH breached no legal duty owed to Mr. Wadkins. 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. OSHA requires the employer to protect its exposed employee from fiberglass roof panels or skylights. CBS Outdoor exposed Mr. Wadkins to the hazard of an unguarded skylight. 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 did not conceal the skylights from ServPro at the time of letting. Since CDH never concealed the alleged defects from ServPro, CDH was not liable for injury arising from the alleged defect. 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 ServPro building, exposing the employees to skylights. CBS Outdoor admitted that it violated OSHA regulations and its own fall protection policy. Mr. Wadkins’ suit against CDH, flowing from the negligence of CBS Outdoor, triggered the indemnity agreement found in the Ground Lease. 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.

Personal injury

Hayden Champion v. Jason McAllister

Aug 20, 2015

OUTCOME: Win for the defendant, Jason McAllister

Danny Collier and associate Catherine Simon Spann of the firm Luther, Collier, Hodges & Cash LLP recently obtained a defense verdict in favor of a co-employee in a Baldwin County jury trial. The plain ... tiff (employed by a staffing company and attached to a local general contractor) alleged that his supervisor had provided a grinder for him to use without the side handle installed, which led to a superficial cut on his leg. The plaintiff’s theory under Ala. Code § 25-5-11 was that the missing side handle was equivalent to a missing safety device. Accordingly, the plaintiff advanced the “willful conduct” exception to Alabama’s general rule prohibiting co-employee actions. While the plaintiff drove himself to the doctor for possible stiches he was involved in a serious motor vehicle accident. Plaintiff argued that his injuries from the motor vehicle accident were directly caused by the missing grinder handle. Among other defenses, defense counsel proved that (1) the grinder handle was not a “safety guard or safety device” under the statute, and (2) there was no causal link between the missing side handle and the motor vehicle accident. The plaintiff tried to make the causal link by alleging blood-loss-induced unconsciousness from the grinder cut causing him to run a red light on the Foley Beach Express. The defense proved the theory hollow using the doctor’s testimony, the paramedic’s testimony and eye-witness testimony. After four days of trial and less than 30 minutes of deliberation, the jury returned a verdict in favor of the defendant.

Personal injury

Irrie McDuffie, Jr. v. University Grande Associates, LP

Mar 06, 2015

OUTCOME: Mr. Collier obtained summary judgment for the property owner.

Irrie McDuffie, Jr., tripped and fell as he was walking past University Grande Associates, LP's property in Mobile County, Alabama. University Grande's contractor was in the process of constructing an ... apartment project near the University of South Alabama. Mr. Collier demonstrated to the Circuit Court that Mr. McDuffie tripped and fell over bright orange construction fencing located near the driveway and sidewalk. Since the offending condition was open and obvious, the owner was entitled to judgment as a matter of law.

Construction and development

Robin Wade v. Orange Beach Water & Sewer Authority v. Eutaw Construction Company, Inc.

Sep 22, 2014

OUTCOME: Win for Eutaw Construction Company, Inc.

Landowner Robin Wade sued City of Orange Beach, Orange Beach Water & Sewer Authority (OBWSA) and others for damage to Power Line Road in Orange Beach, Alabama. Mr. Wade enjoyed a non-exclusive easemen ... t over the private dirt road. OBWSA brought a third-party action against Eutaw Construction Company, Inc., a Mississippi general contractor, to the extent its placement of a water main along Power Line Road caused or contributed to the damage. Mr. Wade contended that City of Orange Beach and others damaged the road, making it impassable - particularly during inclement weather. Mr. Collier proved that his client Eutaw Construction's 2009 water main project for OBWSA was done in a good and workmanlike manner. Eutaw Construction followed plans and specifications, leaving the dirt road in as good or better shape as when found. Mr. Collier presented the facts and Alabama law to the Circuit Court of Baldwin County, arguing there was no case against Eutaw Construction. On September 22, 2014, The Honorable Lang Floyd entered summary judgment in favor of Eutaw Construction. The case continued against other parties alleged to be at fault.

Contracts and agreements

Apel Steel Corporation v. Walton Construction Company, LLC

Jul 18, 2014

OUTCOME: Mr. Collier got the case dismissed for nuisance value.

This lawsuit arose out of a February 4, 2009 fire that occurred on a Missouri construction site. The owner had purchased and maintained a builder’s risk insurance policy to cover property damage cause ... d by fire and which policy covered the interests of the owner, contractor, subcontractors and sub-subcontractors. Walton, the contractor, demanded that the responsible subcontractor, Apel Steel Corporation (“Apel Steel”), pay for the fire loss. Apel Steel accepted Walton’s demand. Instead of asserting a claim based on the builder’s risk insurance policy, Apel Steel made a claim against the responsible sub-subcontractor, JS Nationwide Erectors, Inc. (“JS Nationwide”). When that claim ran into a road-block, Apel Steel filed the lawsuit. Apel Steel settled with JS Nationwide. Northstar was dismissed for lack of personal jurisdiction. Defending Walton under a Liberty Mutual policy, Mr. Collier asserted that Apel Steel had waived any right to claim against Walton by virtue of a signed change order, the waiver of subrogation clause and other waiver defenses founded upon the contract documents. Also, Mr. Collier tendered the claim to Apel Steel’s liability insurer, Penn National, on behalf of Walton as an additional insured. When Penn National refused the tender, Mr. Collier filed suit for Walton against Penn National for defense and indemnity. At mediation in June 2014, Mr. Collier insisted that any settlement monies come from Penn National. Liberty Mutual, on behalf of Walton, contributed a nuisance amount toward settlement: less than one percent of the total claim; and less than two percent of the total settlement.

Personal injury

Kelly, et. al., v. Powell Construction Services, Inc.

Jul 23, 2013

OUTCOME: Powell Construction Services, Inc., prevailed.

Danny Collier successfully defended Powell Construction Services, Inc., in the Circuit Court of Harrison County, Mississippi. On October 26, 2008, a night-fishing trip ended when the boat carrying ... seven persons struck a Bay St. Louis Bridge piling. Numerous personal injuries resulted in multiple lawsuits that the Court consolidated into one case involving six plaintiffs and nine defendants. The plaintiffs alleged that the red and green navigation lights on the bridge (to mark the channel) were not illuminated, thus creating a dangerous condition in the dark waters of the bay. In a motion for summary judgment, Mr. Collier argued that there was no reason for a jury trial because Powell Construction, a highway lighting contractor, prudently accomplished exactly what the Mississippi Department of Transportation hired it to do: make temporary repairs to the navigation lights following Hurricane Gustav. In fact, MDOT had accepted and approved of Powell Construction’s work. Also, Mr. Collier demonstrated that even if the lights were out that night, the boat operator caused the accident by attempting to pass underneath the Bay St. Louis Bridge knowing that the bridge was up ahead, knowing the navigation lights were out and knowing his heading was based on a previous GPS course. That GPS course went through the bridge 1½ football fields away from the channel. Basically, the boat operator was not even attempting to pass through the channel when he hit the bridge. As Mr. Collier argued, the context of the accident showed the navigation lights to be a pretext for the lawsuit. The Circuit Court of Harrison County agreed with Mr. Collier in ruling that the boat operator was the sole proximate cause of the accident. Therefore, the Court dismissed the negligence and wantonness claims against Powell Construction. Not content with the Court’s ruling, the plaintiffs filed motions to undo the judgment. Their efforts failed. Mr. Collier convinced the Court that the plaintiffs could establish neither a clear error of law nor manifest injustice. In Powell Construction’s opposition brief, Mr. Collier highlighted his cross-examination of the hostile boat operator. In a spirited deposition, the reluctant forty-year fisherman finally admitted to the Ole Miss lawyer that he was following a prior GPS course taking the fishing party through some location other than the channel. Basically, the boat operator had attempted to escort his party through a wall of total darkness. That is what caused the crash. On July 23, 2013, the Circuit Court denied the plaintiffs’ motions to alter or amend the judgment. Thus, Powell Construction prevailed. In addition to general liability, Mr. Collier handles wrongful death, premises liability, products liability, trucking cases and construction law. He practices in Mississippi and Alabama, with offices in Biloxi and Mobile.

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