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Construction
10 min read
Areas of Expertise :
Construction, Construction Safety, Occupational Safety And Health (OSHA), Workplace Safety, Human Factors
Published Date:
Last Modified Date:
Jurisdiction:
California State
James Strouse v. Webcor Construction, L.P. grew out of an injury at the California Memorial Stadium project after Strouse, an ACCO Engineered Systems employee, stepped onto a plywood cover placed over an approximately 12-inch-deep expansion joint and the cover gave way. The dispute moved into a jury trial in Alameda County Superior Court, where the jury assigned Webcor full responsibility and awarded damages. After trial, the court also entered an attorney-fee award tied to the cross-action between Webcor and ACCO.
Webcor appealed the liability finding and related rulings. The Court of Appeal affirmed, focusing on whether a general contractor could be liable to a subcontractor’s employee under a retained-control and affirmative-contribution theory, along with disputed jury instructions and how Cal-OSHA requirements about covering and checking openings were presented to the jury. In that context, the evidence addressed inspections, the condition and placement of the cover, and duties aimed at preventing falls into floor openings points the parties litigated as part of construction safety when arguing whether the judgment and fee award should remain in place.
Webcor contracted with the University of California to rehabilitate California Memorial Football Stadium and subcontracted ventilation and plumbing work to ACCO Engineered Systems. The project setup mattered later because the jury and the appellate court examined what control Webcor kept over a condition affecting a common travel area. That allocation of responsibilities set the stage for later arguments about who managed the temporary cover and its upkeep.
James Strouse, an ACCO employee, was injured when his leg fell into an expansion joint after a plywood cover gave way. From the outset, the dispute centered on whether the cover was stable, properly placed, and maintained in a way that prevented a foot or leg from entering the opening. The accident became the factual anchor for later claims tied to jobsite control and fall-prevention measures.
Strouse filed suit against Webcor for general negligence and later filed a first amended complaint. Webcor responded and filed a cross-complaint against ACCO seeking enforcement of a contractual defense and indemnity provision. The litigation then proceeded on two tracks: Strouse’s injury claims and Webcor’s attempt to shift contractual responsibility to the subcontractor.
The trial began in March 2016 and focused on who designed the plywood cover, who controlled its day-to-day use, and what steps were taken to keep it safe over time. The parties presented evidence on the cover’s condition, how it was inspected and maintained, and how Cal-OSHA floor-opening cover requirements were applied on the jobsite. Safety testimony featured dueling experts. Strouse’s safety expert, Gerald Fulghum, testified that Webcor, described as the “controlling employer” was responsible for Cal-OSHA compliance, and he relied on photographs (including the “line 53” area) to describe gaps, holes, and layered plywood as a hazard. Webcor’s safety expert, J. Robert Harrell, also testified that Webcor retained overall safety responsibility and controlling-employer Cal-OSHA duties, but he emphasized that the photographs reflected a cover that was not properly maintained.
In April 2016, the jury returned a special verdict finding Webcor 100 percent liable for Strouse’s injuries and awarded $2,626,750 in damages. The verdict reflected findings tied to Webcor’s role in the cover and control over related site practices. That outcome became the foundation for post-trial motions and later appellate review.
After judgment, Webcor moved for judgment notwithstanding the verdict and for a new trial, and both motions were denied. ACCO, as the prevailing party on Webcor’s cross-action, sought attorney fees, and the court awarded $298,843. These rulings remained part of the appellate dispute alongside the liability judgment and instruction issues.
The Court of Appeal affirmed the judgment and the post-judgment orders, including the attorney-fee award. On the merits, the court addressed three core issues: whether the jury was properly instructed under CACI No. 1009B in light of Hooker, whether Webcor could be liable under a retained-control/affirmative-contribution theory, and whether a negligence-per-se instruction tied to Cal-OSHA regulations was properly given.
In discussing the Cal-OSHA and “controlling employer” theory, the court relied on the trial record, including the competing safety testimony. Fulghum’s testimony supported Strouse’s position that Webcor bore controlling-employer compliance responsibility and that the photographs reflected a hazard, while Harrell’s testimony acknowledged Webcor’s overall safety role but emphasized poor cover maintenance. With the affirmance, the damages award and fee award remained in place.
The court issued an order certifying the opinion for partial publication after the March 27, 2019 decision. The order addressed which parts of the opinion would be published and stated there was no change in judgment. As reflected in these materials, the affirmed trial judgment, the damages award, and the attorney-fee award remained the operative outcome.
Court:
California Court of Appeal, First Appellate District, Division Three
Case Name:
Strouse v. Webcor Construction, L.P.
Construction Accidents
Fall Protection
Cal OSHA
Construction Inspections
Safety Engineering
Worker Safety
Construction Engineering
Workplace Accidents
James Strouse v. Webcor Construction, L.P. grew out of an injury at the California Memorial Stadium project after Strouse, an ACCO Engineered Systems employee, stepped onto a plywood cover placed over an approximately 12-inch-deep expansion joint and the cover gave way. The dispute moved into a jury trial in Alameda County Superior Court, where the jury assigned Webcor full responsibility and awarded damages. After trial, the court also entered an attorney-fee award tied to the cross-action between Webcor and ACCO.
Webcor appealed the liability finding and related rulings. The Court of Appeal affirmed, focusing on whether a general contractor could be liable to a subcontractor’s employee under a retained-control and affirmative-contribution theory, along with disputed jury instructions and how Cal-OSHA requirements about covering and checking openings were presented to the jury. In that context, the evidence addressed inspections, the condition and placement of the cover, and duties aimed at preventing falls into floor openings points the parties litigated as part of construction safety when arguing whether the judgment and fee award should remain in place.
Webcor contracted with the University of California to rehabilitate California Memorial Football Stadium and subcontracted ventilation and plumbing work to ACCO Engineered Systems. The project setup mattered later because the jury and the appellate court examined what control Webcor kept over a condition affecting a common travel area. That allocation of responsibilities set the stage for later arguments about who managed the temporary cover and its upkeep.
James Strouse, an ACCO employee, was injured when his leg fell into an expansion joint after a plywood cover gave way. From the outset, the dispute centered on whether the cover was stable, properly placed, and maintained in a way that prevented a foot or leg from entering the opening. The accident became the factual anchor for later claims tied to jobsite control and fall-prevention measures.
Strouse filed suit against Webcor for general negligence and later filed a first amended complaint. Webcor responded and filed a cross-complaint against ACCO seeking enforcement of a contractual defense and indemnity provision. The litigation then proceeded on two tracks: Strouse’s injury claims and Webcor’s attempt to shift contractual responsibility to the subcontractor.
The trial began in March 2016 and focused on who designed the plywood cover, who controlled its day-to-day use, and what steps were taken to keep it safe over time. The parties presented evidence on the cover’s condition, how it was inspected and maintained, and how Cal-OSHA floor-opening cover requirements were applied on the jobsite. Safety testimony featured dueling experts. Strouse’s safety expert, Gerald Fulghum, testified that Webcor, described as the “controlling employer” was responsible for Cal-OSHA compliance, and he relied on photographs (including the “line 53” area) to describe gaps, holes, and layered plywood as a hazard. Webcor’s safety expert, J. Robert Harrell, also testified that Webcor retained overall safety responsibility and controlling-employer Cal-OSHA duties, but he emphasized that the photographs reflected a cover that was not properly maintained.
In April 2016, the jury returned a special verdict finding Webcor 100 percent liable for Strouse’s injuries and awarded $2,626,750 in damages. The verdict reflected findings tied to Webcor’s role in the cover and control over related site practices. That outcome became the foundation for post-trial motions and later appellate review.
After judgment, Webcor moved for judgment notwithstanding the verdict and for a new trial, and both motions were denied. ACCO, as the prevailing party on Webcor’s cross-action, sought attorney fees, and the court awarded $298,843. These rulings remained part of the appellate dispute alongside the liability judgment and instruction issues.
The Court of Appeal affirmed the judgment and the post-judgment orders, including the attorney-fee award. On the merits, the court addressed three core issues: whether the jury was properly instructed under CACI No. 1009B in light of Hooker, whether Webcor could be liable under a retained-control/affirmative-contribution theory, and whether a negligence-per-se instruction tied to Cal-OSHA regulations was properly given.
In discussing the Cal-OSHA and “controlling employer” theory, the court relied on the trial record, including the competing safety testimony. Fulghum’s testimony supported Strouse’s position that Webcor bore controlling-employer compliance responsibility and that the photographs reflected a hazard, while Harrell’s testimony acknowledged Webcor’s overall safety role but emphasized poor cover maintenance. With the affirmance, the damages award and fee award remained in place.
The court issued an order certifying the opinion for partial publication after the March 27, 2019 decision. The order addressed which parts of the opinion would be published and stated there was no change in judgment. As reflected in these materials, the affirmed trial judgment, the damages award, and the attorney-fee award remained the operative outcome.
Safety Expert Witness (Plaintiff and Defense)
Plaintiff: The appellate opinion identifies Gerald Fulghum as Strouse’s safety expert. He testified that Webcor, described as the “controlling employer,” was responsible for compliance with the Cal-OSHA floor-opening cover regulation on the jobsite. He also testified that the condition of the line 53 area shown in photographs constituted a safety hazard, noting gaps and holes and describing how layers of plywood appeared to be arranged.
Defense: The appellate opinion identifies J. Robert Harrell as Webcor’s safety expert. He testified that Webcor retained overall safety responsibility on the jobsite and, as the “controlling employer,” was responsible for compliance with the Cal-OSHA floor-opening cover regulation on the jobsite. He also testified that the photographs showed a safety cover that was not properly maintained.
Construction Safety Expert Witness
In disputes involving a plywood cover over an opening in a walking surface, this type of expert is often engaged to review site rules for securing covers, inspection routines, and who had authority to repair or replace a cover once it showed wear. Their usual work includes comparing the site’s approach to floor-opening controls against applicable safety plans and training practices used on large construction projects.
Industrial Engineering Expert Witness
An industrial engineering expert is often engaged to evaluate how a worksite control process actually functions: who is assigned responsibility, how hazards are logged, and how inspection and repair workflows are carried out day to day. In a case centered on a cover in a commonly traveled area, this expert commonly reviews whether the process for removing, reinstalling, and verifying covers is reliable and consistently followed. They may also explain how handoffs between crews and supervisors can affect whether a hazard is corrected or left in place.
Human Factors Expert Witness
Where the incident involves walking over a covered opening while carrying materials, a human factors expert is often engaged to assess how ordinary work demands affect perception and footing. Their typical role is to explain how load-carrying, sightline limits, and divided attention can interact with a surface transition or a cover that shifts underfoot. They may also address why a worker might not detect early signs of instability before a foot or leg enters an opening.
Build the case theory around retained control with concrete control facts.
Strouse proceeded on the view that Webcor retained control over the cover and affirmatively contributed to the hazardous condition. That framing matters because it aligns with the instruction pathway contested on appeal under CACI No. 1009B and Hooker. Trial proof that ties control to specific acts, designing the cover, directing its use, or managing its upkeep can be decisive.
Treat jury instructions as a case-in-chief issue, not an afterthought.
The appeal squarely addressed whether the jury was properly instructed, including use of CACI No. 1009B. Preserving a clear record on why the instruction matches the evidence can reduce later disputes about what the jury was allowed to decide. Instruction disputes are especially likely when the defense argues the case should be barred by the independent-subcontractor framework.
When relying on Cal-OSHA, connect the regulation to what the jury can see and understand.
The appellate decision addressed a negligence-per-se instruction tied to a Cal-OSHA floor-opening cover regulation and testimony about controlling-employer responsibility. A stronger approach is to pair the regulatory language with tangible facts: where the cover was placed, what condition it was in, and how it was inspected or maintained. That link helps keep the legal theory focused on the actual site condition rather than abstract compliance debates.
Use photographs and maintenance evidence to lock down the factual narrative.
The proof included photographs and testimony about gaps, holes, and the apparent layering and condition of plywood. When liability turns on whether a cover was properly maintained, dated images and clear testimony about upkeep practices can narrow room for dispute. This type of evidence can also support or weaken the argument that control translated into affirmative contribution.
Do not treat cross-actions as side issues when fees are in play.
Webcor’s cross-complaint against ACCO led to an attorney-fee award to ACCO as the prevailing party on that cross-action. The appeal left that fee award in place along with the judgment. Early evaluation of indemnity and defense clauses can materially affect exposure and post-trial costs even when the main verdict is the primary focus.
Strouse v. Webcor Construction moved from a jobsite injury at the California Memorial Stadium project through a jury verdict, post-trial motions, and appellate review. The jury found Webcor fully liable and awarded $2,626,750 in damages, and the court later awarded $298,843 in attorney fees to ACCO on the cross-action; the Court of Appeal affirmed those outcomes, and the later partial-publication order stated there was no change in judgment. For attorneys, the case remains a useful reference for how a retained-control theory, contested jury instructions, and a Cal-OSHA-based instruction can be litigated from trial through appeal.
The dispute also turned on practical questions about a plywood cover placed over an expansion joint in a travel area, including its condition, placement, and maintenance over time. The opinion’s discussion of controlling-employer testimony and floor-opening cover requirements provides concrete reference points for construction safety arguments that stay tied to observable site conditions. In future cases involving temporary covers, walking surfaces, and inspection routines, the Strouse record shows how courts may assess whether site control and upkeep practices support liability.
What happened in Strouse v. Webcor Construction at the California Memorial Stadium project in Berkeley?
James Strouse, an ACCO employee, was injured when his leg fell into an expansion joint after a plywood cover gave way at the stadium jobsite. The dispute focused on the condition and upkeep of the cover and who controlled that part of the work area. The case proceeded to a jury trial and later an appeal.
What was the jury’s verdict and damages award in Strouse v. Webcor?
The jury returned a special verdict finding Webcor 100 percent liable for Strouse’s injuries. The jury awarded $2,626,750 in damages. Those amounts remained in place after the appeal.
What did the California Court of Appeal decide in A148863?
The Court of Appeal affirmed the judgment and related post-judgment orders. The appellate issues included retained control and affirmative contribution, disputed jury instructions, and an instruction tied to a Cal-OSHA regulation. A later order certifying the opinion for partial publication stated there was no change in judgment.
Where was the Strouse v. Webcor trial litigated, and why does that matter for California jobsite injury cases?
The matter was tried in Alameda County Superior Court and then reviewed by the California Court of Appeal. That procedural path mattered because the appeal examined how retained control and affirmative contribution were presented through evidence and jury instructions. The court also reviewed how a Cal-OSHA-based instruction was submitted for the jury’s consideration.
How did Cal-OSHA floor-opening cover rules factor into the case?
The case involved an instruction dispute tied to a Cal-OSHA regulation governing floor-opening covers. Evidence and testimony addressed the cover’s condition, how it was maintained, and inspection practices in a work area used during active construction. The appellate decision addressed whether the negligence-per-se instruction tied to that regulation was properly given.
Safety Expert Witness (Plaintiff and Defense)
Plaintiff: The appellate opinion identifies Gerald Fulghum as Strouse’s safety expert. He testified that Webcor, described as the “controlling employer,” was responsible for compliance with the Cal-OSHA floor-opening cover regulation on the jobsite. He also testified that the condition of the line 53 area shown in photographs constituted a safety hazard, noting gaps and holes and describing how layers of plywood appeared to be arranged.
Defense: The appellate opinion identifies J. Robert Harrell as Webcor’s safety expert. He testified that Webcor retained overall safety responsibility on the jobsite and, as the “controlling employer,” was responsible for compliance with the Cal-OSHA floor-opening cover regulation on the jobsite. He also testified that the photographs showed a safety cover that was not properly maintained.
Construction Safety Expert Witness
In disputes involving a plywood cover over an opening in a walking surface, this type of expert is often engaged to review site rules for securing covers, inspection routines, and who had authority to repair or replace a cover once it showed wear. Their usual work includes comparing the site’s approach to floor-opening controls against applicable safety plans and training practices used on large construction projects.
Industrial Engineering Expert Witness
An industrial engineering expert is often engaged to evaluate how a worksite control process actually functions: who is assigned responsibility, how hazards are logged, and how inspection and repair workflows are carried out day to day. In a case centered on a cover in a commonly traveled area, this expert commonly reviews whether the process for removing, reinstalling, and verifying covers is reliable and consistently followed. They may also explain how handoffs between crews and supervisors can affect whether a hazard is corrected or left in place.
Human Factors Expert Witness
Where the incident involves walking over a covered opening while carrying materials, a human factors expert is often engaged to assess how ordinary work demands affect perception and footing. Their typical role is to explain how load-carrying, sightline limits, and divided attention can interact with a surface transition or a cover that shifts underfoot. They may also address why a worker might not detect early signs of instability before a foot or leg enters an opening.
Build the case theory around retained control with concrete control facts.
Strouse proceeded on the view that Webcor retained control over the cover and affirmatively contributed to the hazardous condition. That framing matters because it aligns with the instruction pathway contested on appeal under CACI No. 1009B and Hooker. Trial proof that ties control to specific acts, designing the cover, directing its use, or managing its upkeep can be decisive.
Treat jury instructions as a case-in-chief issue, not an afterthought.
The appeal squarely addressed whether the jury was properly instructed, including use of CACI No. 1009B. Preserving a clear record on why the instruction matches the evidence can reduce later disputes about what the jury was allowed to decide. Instruction disputes are especially likely when the defense argues the case should be barred by the independent-subcontractor framework.
When relying on Cal-OSHA, connect the regulation to what the jury can see and understand.
The appellate decision addressed a negligence-per-se instruction tied to a Cal-OSHA floor-opening cover regulation and testimony about controlling-employer responsibility. A stronger approach is to pair the regulatory language with tangible facts: where the cover was placed, what condition it was in, and how it was inspected or maintained. That link helps keep the legal theory focused on the actual site condition rather than abstract compliance debates.
Use photographs and maintenance evidence to lock down the factual narrative.
The proof included photographs and testimony about gaps, holes, and the apparent layering and condition of plywood. When liability turns on whether a cover was properly maintained, dated images and clear testimony about upkeep practices can narrow room for dispute. This type of evidence can also support or weaken the argument that control translated into affirmative contribution.
Do not treat cross-actions as side issues when fees are in play.
Webcor’s cross-complaint against ACCO led to an attorney-fee award to ACCO as the prevailing party on that cross-action. The appeal left that fee award in place along with the judgment. Early evaluation of indemnity and defense clauses can materially affect exposure and post-trial costs even when the main verdict is the primary focus.
Strouse v. Webcor Construction moved from a jobsite injury at the California Memorial Stadium project through a jury verdict, post-trial motions, and appellate review. The jury found Webcor fully liable and awarded $2,626,750 in damages, and the court later awarded $298,843 in attorney fees to ACCO on the cross-action; the Court of Appeal affirmed those outcomes, and the later partial-publication order stated there was no change in judgment. For attorneys, the case remains a useful reference for how a retained-control theory, contested jury instructions, and a Cal-OSHA-based instruction can be litigated from trial through appeal.
The dispute also turned on practical questions about a plywood cover placed over an expansion joint in a travel area, including its condition, placement, and maintenance over time. The opinion’s discussion of controlling-employer testimony and floor-opening cover requirements provides concrete reference points for construction safety arguments that stay tied to observable site conditions. In future cases involving temporary covers, walking surfaces, and inspection routines, the Strouse record shows how courts may assess whether site control and upkeep practices support liability.
What happened in Strouse v. Webcor Construction at the California Memorial Stadium project in Berkeley?
James Strouse, an ACCO employee, was injured when his leg fell into an expansion joint after a plywood cover gave way at the stadium jobsite. The dispute focused on the condition and upkeep of the cover and who controlled that part of the work area. The case proceeded to a jury trial and later an appeal.
What was the jury’s verdict and damages award in Strouse v. Webcor?
The jury returned a special verdict finding Webcor 100 percent liable for Strouse’s injuries. The jury awarded $2,626,750 in damages. Those amounts remained in place after the appeal.
What did the California Court of Appeal decide in A148863?
The Court of Appeal affirmed the judgment and related post-judgment orders. The appellate issues included retained control and affirmative contribution, disputed jury instructions, and an instruction tied to a Cal-OSHA regulation. A later order certifying the opinion for partial publication stated there was no change in judgment.
Where was the Strouse v. Webcor trial litigated, and why does that matter for California jobsite injury cases?
The matter was tried in Alameda County Superior Court and then reviewed by the California Court of Appeal. That procedural path mattered because the appeal examined how retained control and affirmative contribution were presented through evidence and jury instructions. The court also reviewed how a Cal-OSHA-based instruction was submitted for the jury’s consideration.
How did Cal-OSHA floor-opening cover rules factor into the case?
The case involved an instruction dispute tied to a Cal-OSHA regulation governing floor-opening covers. Evidence and testimony addressed the cover’s condition, how it was maintained, and inspection practices in a work area used during active construction. The appellate decision addressed whether the negligence-per-se instruction tied to that regulation was properly given.
What did the April 23, 2019 partial-publication order change in the outcome?
It did not change the outcome. The order addressed partial publication of the opinion and stated there was no change in judgment. The affirmed judgment and related orders remained the operative result in these sources.
Construction Accidents
Fall Protection
Cal OSHA
Construction Inspections
Safety Engineering
Worker Safety
Construction Engineering
Workplace Accidents
Geotechnical Engineering, +4
Construction
Industrial Hygiene, +7
Construction
What did the April 23, 2019 partial-publication order change in the outcome?
It did not change the outcome. The order addressed partial publication of the opinion and stated there was no change in judgment. The affirmed judgment and related orders remained the operative result in these sources.