Trial Magazine

Tim Kono, a 30-year-old laborer, was working at a new home construction site owned by D.R. Horton. Russ Hall was operating an excavator to dig a trench from a house to the street for a water and sewer hookup. Kono observed water collecting in the bottom of the trench. He brought this to the attention of Hall, who allegedly ordered him to continue working in the trench. While Kono was working, the wall of the trench caved in, burying him. His co-workers rescued him; however, he suffered injuries to his back; right ankle; and left hip, knee, and lower leg, which necessitated multiple surgeries, physical therapy, and pain medication. He also suffers from severe PTSD, requiring counseling.

Kono sued three supervisory co-workers, including Hall, alleging they failed to follow mandatory OSHA excavation safety standards. The plaintiff also alleged that D.R. Horton was liable for failing to provide a safe workplace and for failing to prevent Hall’s violation of OSHA standards. The plaintiff, who had earned $40,000 annually, claimed lost income of approximately $175,200.

The co-worker defendants asserted they had complied with OSHA and were not aware of any significant risk to Kono before the trench caved in. The defense also claimed that Kono was exaggerating his injuries.

The plaintiff settled with the co-worker defendants at mediation for a confidential amount. The jury awarded approximately $19.2 million, including over $16.1 million in punitive damages. The jury apportioned liability at 45% to D.R. Horton, 5% to the plaintiff, and 50% to three nonparties.

Citation: Kono v. Hall, No. CVCV061592 (Iowa Dist. Ct. Polk Cnty. Oct. 4, 2023).

Plaintiff counsel: AAJ member Bruce L. Braley, Denver; and AAJ member R. Saffin Parrish-Sams, West Des Moines, Iowa.

Plaintiff experts: Wendell Wood, excavation safety, Battle Creek, Mich.; and Robert Rondinelli, impairment evaluation, Des Moines.

Defense experts: Aaron Dunlop, excavation safety, Davenport, Iowa; and Kim Rhen, employability, Omaha, Neb.