Mobile Register – February 19, 2003

Attorneys for Tony Bolton say contractor should have taken steps to 'eliminate the hazard'

A Mobile County Circuit Court jury on Tuesday awarded $9.5 million to a Daphne man who suffered third-degree burns over 60 percent of his body during a September 2001 on-the-job accident.

Antonio "Tony" Bolton had sued J.C. Duke & Associates, a Mobile construction firm, claiming the company put him in harm's way when it assigned him to spray-paint an attic over a carport next to the Lott Road Methodist Church in Eight Mile.

"Our position was that it was what's called inherently dangerous work," said Skipper Finkbohner, one of Bolton's lawyers. "Because it was inherently dangerous, the Duke company, when it did site preparation work to get ready for the painters, needed to ventilate the attic and do hazard mitigation.

"It was their responsibility to identify the hazard and eliminate the hazard or prevent our client from going in there," he said.

Bolton's lawyers - Finkbohner, Chip Chiepalich and John Spencer, all of Mobile - tried the case before Mobile Circuit Court Judge Rick Stout. The trial started Feb. 10.

The jury awarded the 43-year-old painter $8 million in compensatory damages, and $1.5 million in punitive damages. J.C. Duke & Associates will appeal the verdict, said Mobile lawyer Jeff Luther, one of the lawyers who represented the company.

The defense didn't dispute the seriousness of Bolton's injuries, but argued that J.C. Duke & Associates wasn't responsible for Bolton's safety, Luther said.

Bolton was an employee of Sub-Walker Contracting and Painting Co. of Daphne. That company was hired by J.C. Duke as the painting subcontractor on a contract. J.C. Duke had to repair the church, which had been damaged by fire. "There was an attic over a carport and the contractor wanted it painted with an oil-based primer," Finkbohner said. "The attic was in a confined space, and my guy really didn't have any training. He went up to the attic to spray paint and he got burned over 60 percent of his body."

Luther said that the Occupational Safety and Health Administration, or OSHA, "came out and investigated the accident, and found no violations on the part of our client."

The federal agency, however, did find fault with the painting subcontractor that Bolton worked for, Luther said.

Frequently, plaintiffs will sue multiple parties. In this case, J.C. Duke & Associates was the only company sued.

Luther, asked if he knew why the plaintiffs didn't sue the subcontractor, said, "That's a good question."

"We subcontracted the painting work to Sub-Walker Contracting & Painting," Luther said. "They were in charge of the work area, and their man went up in the attic and didn't create any ventilation and used a product that was flammable, and the flammable vapors were ignited from an unknown source and caused a flash fire."

Finkbohner said testimony at trial reflected that Sub-Walker was unqualified and should never have been hired by J.C. Duke & Associates. "They were two men with a truck and some paint buckets," he said.

Bolton was hospitalized for four months, and suffered third-degree burns -- the most serious kind -- on 60 to 70 percent of his body, said Luther.

"But my client didn't cause the fire and we didn't cause his injuries," Luther said.

Finkbohner said Bolton's hands are gnarled and he's in constant pain. "He's going to need care for the rest of his life," he said.

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