A destroyed electrical box, a difficult body of medical evidence and a law that’s not particularly plaintiff-friendly. Kurt Zaner and Sarah McEahern of Zaner Harden met no shortage of obstacles in their case that last fall, resulted in the largest jury verdict they know of under premises liability law in Colorado.
The nearly $16 million verdict has earned the attorneys a nomination for the CTLA’s Case of the Year Award. Zaner and McEahern represented Brian Warembourg, who suffered severe injuries and developed complex regional pain syndrome when an electrical box at the home of one of his flooring jobs exploded.
The outdoor box was from Excel Electric — a Colorado company not to be confused with Xcel Energy. The box exploded when Warembourg tried to move the switches inside, after he discovered his tools for the flooring job weren’t getting power. Excel denied any liability for the incident, and blamed Warembourg and his employer for disturbing the box.
But Excel made an ill-fated move when the company destroyed the electrical box after the incident and then falsely claimed they got rid of it later than they did. As a result, the judge decided Excel had contributed to causing Warembourg’s injuries, so Zaner and McEahern didn’t have to prove at trial whether the company was liable for the incident but rather what level of liability they should have.
“When we got the case, we knew there was no box. But we had no idea why there was no box,” Zaner said. “Because until you file a lawsuit, you don’t really find these things out, so we had to take it on blind faith that we’d be able to figure out what happened.” He said, eventually, they uncovered a re- cording of Excel Electric’s owner talk- ing about when the company had actually destroyed the box.
“It was after they knew that [Warembourg] was injured and there was a possibility that this could have ended up with a lawsuit,” McEahern said.
Zaner said premises liability law tends to favor defendants because it’s more complex to explain to jurors than a simple negligence standard, regardless of whether the legislature intended it that way. The premises liability statute contains different classifications that plaintiffs can fall under, each carrying a different level of duty by defendants that they owed to the plaintiffs to protect them: trespassers, licensees and invitees.
“Defendants want plaintiffs classified as a trespasser because they owe no duty of protecting a trespasser,” Zaner said. “They owe a little more duty to a licensee, and they owe the most significant duty to an invitee.” He said Excel attempted to argue Warembourg was trespassing because he should not have tinkered with the electrical box, and Excel also attempted to lay blame on Warembourg’s employer for failing to train him not to disturb the box.
The court agreed with Excel that the premises liability statute should apply, rather than simply negligence, because Excel controlled the electricity on the land the explosion happened on. But the jury ultimately classified Warembourg as an invitee, because he was at the home for a flooring job.