For Want of a Nail

Not long ago a case with an interesting and instructional fact pattern came my way. My client, “Ted”, was an older man who lived, with his wife and grandson, in a rented house. One day roofers showed up, tore off the existing metal drip edge, and in a day or two had a new metal roof in place, installed over the asphalt shingles.

The roofers left a mess.  They had placed no tarps to catch debris, and they did not sweep with a magnet. Many nails were visible on the ground. Ted asked the roofers if they were going to pick up more nails, and he was told “Nope, we got what we got.”

A week or two went by. Ted picked up fifty or so nails – he kept seeing them.

Sometime before Christmas Ted was walking across the floor and he was leaving a trail of blood. His wife said “You’re bleeding!” He sat on the couch and took off his sneaker and sock. A bloody roofing nail came off with his sneaker. He had a hole in his right foot, between big toe and 2nd toe, and there was streaking up his leg! His wife said “You’re going to the hospital.”

Ted is diabetic, and like many diabetics he has impaired circulation in his legs and feet. An intractable infection developed, and Ted wound up losing his leg below the knee.

Before I would commit to taking the case, I needed to determine whether the standard of care for roofers called for more precautions to be made to ensure that most nails were picked up. If the standard of care for roofers was rake up construction debris and leave, because many nails left on the ground after a roofing job are an inevitable fact of roofing life, I would have nothing to argue to the jury.

My research, which included speaking to top end roofing companies and my perusal of many roofing equipment catalogues, showed that while it may have once been acceptable (the standard of care, in other words) for a roofing company to leave many nails on the ground, that is no longer the case. Careful use of tarps to catch debris, and the use of inexpensive magnetic rakes to pick up stray nails, is probably now the standard of care. I say “probably” because the standard of care is determined by a judge, and our case settled, quite favorably, in mediation.

This case illustrates that the standard of care in any given industry is an evolving matter. For example, in a famous case from the 1930’s, a tug sank and the crew was lost for want of a two-way radio on the tug’s bridge. The matter went to court, and the tug company argued that the standard of care did not require that tugs have radios. The court decided that while even a few years earlier radios were not the standard of care, the cost and reliability of radios had changed such that the current standard required a functioning radio. The point is that just because one lawyer decides a case cannot be won, because the standard of care doesn’t work for the injured person, another lawyer may be able to make the case by careful research and good lawyering.

A post-script: When Ted called me he told me he had the nail and the shoe and bloody sock. I told him to carefully preserve them. In the event, Ted could not find these items, even with the help of an investigator we sent to help him look. While we could make our case without the nail, shoe and sock, these physical objects would have been valuable and effective exhibits in any jury trial, and in mediation too. Their absence cost Ted quite a lot of money.

For goodness sakes, if you have an injury claim, hold onto everything: the clothing they cut off you in the E.R., the photos, the text messages and emails, everything.

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