In June, a state court jury in Philadelphia ruled that contractors involved in the project must pay damages to the wife and son of recent Belarusian immigrant Siarhei Marhunou, 38, who fell from a balcony about 45 ft from the ground in Philadelphia's Central City neighborhood.

Hanna Marhunou, the wife, had filed a wrongful death lawsuit against OCF Construction, Fitler Construction Group and 2330 Sansom Street LLC, all companies affiliated with developer Ori Feibush. Two other subcontracting companies on the project were also named as defendants. Siarhei Marhunou had been working for a siding company, DPSY LLC.

Federal safety officials cited DPSY LLC for three fall-related serious violations in 2022, one of which related to the Marhunou accident. One of the citations is being contested and another has been settled, according to Occupational Safety and Health Administration records.

Marhunou had no fall protection harness at the time.

No one saw how Marhunou fell off the balcony corner, but the wooden guardrail that had been erected on the balcony by one of the contractors was not OSHA-compliant and the lawsuit claimed that it gave way when Marhunou came in contact with it. A video camera on a building across the street showed the last 10 ft of Marhunou's fall, along with a piece of the guardrail, in which the worker sustained severe injuries to his head and chest.

During the discovery phase of the trial, Feibush, in a deposition, said no one could be sure how the fall occurred. He noted that he personally had undergone safety training but was not present at the site when the accident occurred.

Several defendants reached settlements before the four-day trial. In its verdict, the jury assigned 50% of the fault to OCF Construction and 20% each to Fitler Construction and 2230 Sansom Street, says Marhunou's attorneys. The remaining 10% was split between the projects subs, said the attorneys, who were not affiliated with Feibush.

Feibush could not immediately be reached for comment.

In its appeal seeking a new trial, OCF said the plaintiffs failed to establish a duty of care was due to the victim by OCF, that the magnitude of the damage award was not justified, and that the jury was not invited to consider how much the victim may have contributed to his own death by his own negligence.

Judge Justifies Award Size

In his denial of the appeal, Judge Angelo J. Foglietta wrote that here was sufficient evidence that OCF Construction continued to serve as general contractor even after Feibush had switched the general contractor role to Fitler. He also noted that the plaintiff's expert safety witness had testified that OCF was responsible for providing a fall-arrest system.

As for the justification of the award size, Foglietta wrote that there was sufficient grounds based on the victim's terror during the fall and his instantaneous pain from severe injuries before dying. He also wrote that the award covers the loss of lifetime parental support of Marhunou's son, now three years old, and the deprivation of companionship to Hanna. She had testified before the jury about what she tells her son when he asks about his father. "She tells him that his father went away to live on a cloud but loves him very much," Foglietta wrote.

As to the suggestion that the jury should have been given the option of assigning a percentage of negligence to Marhunou himself, because under current safety practices workers are told that they are "all responsible for safety," Foglietta recorded verbatim his exchange with OCF's attorney during the appeal hearing.

"With no one knowing how the accident happened," Foglietta quoted himself as saying, "I can't then therefore say that the jury can make a determination that the plaintiff was comparatively negligent."