Roofer's Fall Through an Unguarded Skylight Leads to a $22.36 Million Judgment

In June 2016, Sean Kalinowski, a roofer in his early 40s running his own small roofing business, was repairing the roof of a building in Aston, Pennsylvania that housed an ABRA Auto Body & Glass shop. No one witnessed what happened next. Kalinowski apparently tripped over a pallet or a skylight mount on the roof and fell through a skylight, landing on a concrete floor more than 20 feet below.

The building's owner, 2626 Market LLC, and its tenant, ABRA, had not installed guardrails or screens over the skylights, protections required under OSHA regulations. According to trial testimony, a different skylight on the same roof had recently been damaged when a hood cover weighing 50 to 70 pounds fell on it, and both companies had been told the skylights were dangerous before Kalinowski's fall.

Kalinowski suffered a severe traumatic brain injury and multiple fractures. He underwent craniotomies, a tracheostomy, and plate fixation surgery, then spent two months in intensive care, a month at a nursing facility, and three months at Bryn Mawr Rehabilitation Hospital. He was later hospitalized again for a seizure disorder and to have surgical hardware removed. He is partially blind, cannot work, and needs continuous help with daily living.

Kalinowski and his wife, Michele, who brought a loss of consortium claim, sued the landlord and the tenant for negligence. The case went to trial before Philadelphia Court of Common Pleas Judge Lisa Rau and lasted nearly four weeks. On March 20, 2019, after more than a day of deliberations, the jury awarded $24.8 million and found ABRA 60 percent at fault, 2626 Market 30 percent at fault, and Kalinowski 10 percent contributorily negligent. Kenneth Rothweiler served as lead trial counsel, with Fredric Eisenberg and Todd Schoenhaus of the firm then known as Eisenberg, Rothweiler, Winkler, Eisenberg & Jeck as second and third chair.

Before the verdict, the defendants' excess insurer, Great American Insurance Group, had entered a high-low agreement guaranteeing a payment of at least $3 million, capping what the carrier would owe well below what the jury went on to award, with both sides waiving their right to appeal. On April 9, 2019, Judge Rau applied that agreement along with Pennsylvania's rule that a defendant found 60 percent or more at fault is jointly and severally liable for the full judgment. She ordered 2626 Market to pay $3 million and ABRA to pay the remaining $19.36 million, a combined $22.36 million net of Kalinowski's comparative fault.

ABRA's carrier sent a check for only $14.9 million, roughly 60 percent of the original jury figure and about $4.45 million short of the court's order. Michele Kalinowski returned the check and moved for sanctions, and the defendants filed a notice of appeal to the Pennsylvania Superior Court despite having waived that right under the high-low agreement. Judge Rau asked the appellate court to quash the appeal. No public record shows how the appeal or the payment dispute was ultimately resolved.