A window never would have blown in, striking an office worker and sparking what now is a four-year lawsuit if someone had just locked the sash, said the attorney for Corporate Contractors Inc.
“We believe that the plaintiff or her employer didn’t latch the window that day,” said Tom Kabush, who is representing the Beloit-based contractor.
Marie Wagner, who in 2005 was a Rock Valley Communities Programs Inc. employee in Janesville, was at her office desk Sept. 28, 2005, when the window sash directly behind her blew in and struck her on the neck, according to court documents. Her injuries required surgery, according to court documents.
Corporate Contractors, about three months earlier, had replaced windows in the building, including the window that hit Wagner, according to court documents.
Wagner sued Corporate Contractors and building owner Mid-City Development Corp., Beloit, in 2007 alleging improper installation and maintenance of a replacement window.
The case went to circuit court, where a judge ruled Mid-City was not liable in the lawsuit because the accident was caused by an unsafe condition, and Mid-City was not aware of the defective window before the accident.
That left only Corporate Contractors as the defendant.
But the contractor appealed the ruling, arguing Mid-City should be included in the lawsuit when it goes to a hearing. Kabush argued that even if the contractor negligently installed a new window in the office building and the property owner had no notice of the defect, the law provides that Mid-City also is potentially responsible for Wagner’s injuries that resulted from the negligence.
An appeals court Thursday agreed, ruling both defendants could be on the hook for damages. The lawsuit has yet to go the trial, so damage estimates have not been assessed, according to the defense attorneys in the case.
The case will be tried in Rock County Circuit Court, finally giving Wagner her day in court.
But Jack Laffey, the attorney representing Mid-City, said he expected the locked-window argument to play a role once the case went to trial. He also said Mid-City was considering whether to challenge the appeals court ruling that brought Mid-City back into the case.
“Had it been latched,” he said, “this never happens. Period.”
Jim Wickhem, Wagner’s attorney, could not immediately be reached for comment.
According to court documents, an expert witness for Wagner testified that if the locks on the top of the lower window sash were locked, than the lower sash could not fall into the room. However, the witness also claimed the accident was because of improper window installation; not because it was unlocked. The window jams were bowed out, according to the witnessí testimony, leaving too large a gap between the sash and window jam.
Representatives from Corporate Contractors did not immediately return calls.
Once the case goes to trial, Kabush said, it will be a matter of where the jury assesses liability. But he offered a suggestion.
“At the end of the day,” he said, “there shouldn’t be any liability on either defendant.”