WEST VIRGINIA RECORD

CHARLESTON -- A Williamstown man has filed suit against his former employer and a home improvement store, alleging he sustained a hole just below his knee cap after falling from a shelving unit.

David L. Leo claims he was working for defendant Beam Team, which defendant Home Depot had contracted to reset retail warehouse merchandise in product shelves and to install display beams and support.

While Leo was performing the work at the Home Depot located in Charleston on April 1, 2008, he started to climb a second level of product shelves that were located about eight to 10 feet above the floor, according to the complaint he filed March 16 in Kanawha Circuit Court.

"Under the full approval and supervision of the defendants, Beam and Home Depot, the plaintiff ascended the product shelves and was removing a display when the wood decking and beam shelf supports gave way, causing Mr. Leo to fall to the ground below," the suit states. "As a result, plaintiff suffered severe permanent injuries. Plaintiff's injuries include blunt trauma to his knees and a hole in his knee below the knee cap, causing great pain and suffering."

Because of the incident, Leo experienced tremendous pain and suffering; lost wages, his earning capacity, his ability to perform household services and his ability to enjoy life; and suffered humiliation, embarrassment, annoyance and inconvenience, the complaint says.

At the time of the occurrence, the Beam Team did not have workers' compensation insurance, as required by West Virginia code, Leo's complaint says. Accordingly, when Leo applied for workers' compensation benefits, he received no compensation and insufficient medical treatment for his injuries, he claims.

He blames Beam Team and Home Depot for causing his injuries, saying the companies failed to provide him with a safe place to work.

Home Depot and Beam Team deny Leo's allegations against them and want to see his case dismissed.

Beam Team claims it followed all applicable West Virginia laws regarding workers' compensation and says Leo assumed the risk of injury when he performed the work that led to his complaint.

"This defendant asserts to the best of its knowledge it was not required to maintain Workers' Compensation coverage in West Virginia at the time of the subject accident, and instead, this defendant maintained Workers' Compensation coverage in those states in which its activities required it to do so," the Beam Team's response says.

In addition, it says Leo failed to mitigate his damages before filing his complaint against the Beam Team.

In his complaint, Leo is seeking a compensatory and punitive damages, plus pre- and post-judgment interest, attorney's fees, costs and other relief the court deems just.

Home Depot removed the case to U.S. District Court for the Southern District of West Virginia, alleging Leo and the Georgia-based defendants are residents of different states. In addition, Leo is seeking more than the minimum federal jurisdictional limit of $75,000, it claims.

J. Kristopher Cormany of Cormany Law in Charleston will be representing Leo.

Brian A. Cafritz and W. Barry Montgomery of Kalbaugh, Pfund and Messersmith in Richmond will be representing Home Depot.

Dustin C. Haley and R. Carter Elkins of Campbell Woods in Huntington will be representing the Beam Team.

U.S. District Court case number: 2:10-cv-534