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Ironworker tore rotator cuff in fall on wet surface




Mediated Settlement




Cook County


Cook County Circuit Court

Injury Type(s):

other-cortisone injections; shoulder-rotator cuff, injury (tear);

Case Type:

Workplace – Workplace Safety; Slips, Trips & Falls – Slip and Fall; Worker/Workplace Negligence – Negligent Maintenance

Case Name:

Jeffrey W. Acker v. W.E. O’Neil Construction Co., a Corporation; Kedmont Waterproofing Co, Inc., a Corporation; Zalk Josephs Construction, L.L.C., a Limited Liability Company; Zalk Josephs Fabricators, L.L.C., a Limited Liability Company; and Chicago Decking, Inc., a Corporation,
No. 2014-L-001352


November 2, 2017



Jeffrey W. Acker (Male, 47 Years)

Plaintiff Attorney(s):

Marc A. Taxman;
Taxman, Pollock, Murray & Bekkerman, LLC;
Jeffrey W. Acker

Plaintiff Expert(s):

David Gibson; M.B.A., C.P.A., C.R.C.; Economics; Chicago,
IL called by:
Marc A. Taxman


Bond Steel Inc., 

Chicago Decking Inc., 

W.E. O’Neil Construction Co., 

Kedmont Waterproofing Co. Inc., 

Zalk Josephs Fabricators L.L.C., 

Zalk Josephs Construction L.L.C.

Defense Attorney(s):

Michael J. Mullen;
Kralovec & Marquard, Chartered;
Chicago Decking Inc. ■ J. Jason Coggins;
Wiedner & McAuliffe Ltd.;
Bond Steel Inc. ■ Richard M. Johnson Jr.;
Stone & Johnson, Chartered;
Kedmont Waterproofing Co. Inc. ■ Daniel J. Donnelly;
Kralovec & Marquard, Chartered;
Chicago Decking Inc. ■ Kathrin Deutschle;
Litchfield Cavo LLP;
Zalk Josephs Fabricators L.L.C., Zalk Josephs Construction L.L.C. ■ Mitchell Frazen;
Litchfield Cavo LLP;
Zalk Josephs Fabricators L.L.C., Zalk Josephs Construction L.L.C. ■ John J. Moroney;
Franco Moroney Buenik LLC;
W.E. O’Neil Construction Co.


Sedgwick for Bond Steel;
Navigators Group Inc. for Chicago Decking;
TIG Insurance Co. for W.E. O’Neil Construction;
Nationwide Mutual Insurance Co. for Zalk Josephs Construction and Zalk Josephs Fabricators;
XL Group plc for Kedmont


On May 9, 2012, plaintiff Jeffrey Acker, 47, an ironworker, was working at a construction site in the basement of a DePaul University building in Chicago under general contractor W.E. O’Neil Construction Co. He was installing reinforcing steel on top of bentonite, a waterproof clay that forms a barrier between dirt and concrete, which had been installed by Kedmont Waterproofing Co. Inc. It had rained several days earlier, and small amounts of water were leaking from above the basement onto the bentonite, which caused the bentonite to become somewhat slippery. Acker allegedly slipped on the bentonite and fell, injuring his shoulder. Acker sued W.E. O’Neil and Kedmont Waterproofing, as well as the companies that had been working on the upper floor where the water allegedly leaked from: Chicago Decking Inc. and Zalk Josephs Construction L.L.C., which were installing steel; and Zalk Josephs Fabricators L.L.C., which had made the steel. He alleged that they were liable for the dangerous condition that led to his fall. Acker’s employer, Bond Steel Inc., was also named as a defendant through third-party claims by W.E. O’Neil and Kedmont. Acker claimed that W.E. O’Neil had an obligation to maintain a hazard-free work area. He alleged that the contractor should have covered the bentonite so it would not get wet. Acker also maintained that he had complained to W.E. O’Neil about wet bentonite and had been told the problem would be remedied. Acker claimed that after the bentonite got wet, Kedmont could have taken steps to dry it or make it less slippery. Possible remedies including draining the bentonite or poking holes in it. Acker argued that Chicago Decking and Zalk Josephs could have used a leaf blower or another type dryer to clear away the water on the upper level before it dripped down to the basement. W.E. O’Neil maintained that Kedmont should have told the general contractor to cover the bentonite prior to the accident. Kedmont maintained it did tell W.E. O’Neil to cover the bentonite. Kedmont also said that if W.E. O’Neil wanted Kedmont to drain the bentonite, the contractor should have told Kedmont to do so. It also denied having prior knowledge of any wet conditions on the bentonite sheeting. Chicago Decking and Zalk Josephs denied that they had a duty to remove the water.


Acker did not go to the hospital from the scene. On May 15, he went to St. Catherine’s Medical Center in Kenosha, Wis., complaining of pain in his right shoulder. He was diagnosed with a torn rotator cuff. Acker ultimately required two surgeries. The first arthroscopic procedure took place on June 15. After he returned to work, he aggravated the injury and required a smaller surgery on Jan. 9, 2015. He also continues to receive cortisone injections in the shoulder every six months. Acker was unable to return to full-duty ironworking. Plaintiff’s counsel maintained that he might require another surgery. He sought recovery of $119,992.40 in past medical expenses and approximately $1,115,000 in past and future lost wages and benefits. He also sought recovery of future medical expenses and damages for past and future pain and suffering.


The parties negotiated a pretrial settlement for $1.16 million. Bond Steel’s insurer agreed to pay $550,000 on behalf of W.E. O’Neil as an additional insured. Kedmont’s primary insurer agreed to pay a total of $525,000, of which $300,000 was paid on behalf of W.E. O’Neil as an additional insured. The remaining $225,000 was contributed on behalf of Kedmont. Chicago Decking’s insurer agreed to pay $75,000, and the Zalk Josephs defendants’ insurer agreed to pay $10,000. As part of the settlement, Bond also waived its workers’ compensation lien of $252,982.33. The negotiations were mediated by Joseph Casciato of Alternative Dispute Resolution.

Trial Information:


Joseph Casciato

Editor’s Comment:

This report is based on information that was provided by plaintiff’s counsel and counsel of Chicago Decking, Kedmont and W.E. O’Neil. Zalk Josephs’ counsel declined to contribute, and Bond Steel’s counsel did not respond to the reporter’s phone calls.