September 25, 2001-Teenager's guardians sue Sears, saying roofing subcontractor caused brain damage
In 1996, then 13-year-old Joey Williams was a good student at middle school, was active in sports, and had lots of friends. An orphan since he was born, he was being raised by his grandparents Mary and Joseph Williams. When he was 11, Joey had won first place in the Strike Force Open Martial Arts Championship, and his photo ran in the Miami Herald. But today, Joey Williams' guardians say, he needs help with basic functions, such as remembering the names of his best friends and ordering from a menu in a restaurant.
In September 1996, they say, he suffered brain damage as a result of exposure to carbon monoxide gas in his bedroom during three weeks when workers were installing a new roof on the Williams' house. His grandparents claim that the odorless, invisible gas leaked into Joey's room as a result of negligence by the roofing company, which was working under contract for Sears. Joey has difficulty speaking, needs help with everyday activities and has poor short-term memory. A neuropsychologist who tested Joey found that he scored at the bottom one percentile for cognitive activity. His physical development has also been affected, his grandparents say. He had to withdraw from high school late last year, and he seldom socializes with friends.
"Sometimes I'll ask Joey to bring me a glass of water," says Mary Williams. "He'll walk to the kitchen, turn around and ask me what I asked him to do just a moment ago." In 1999, the Williams family filed a lawsuit in circuit court against Hoffman Estates, Ill.-based Sears and Diamond Exteriors Inc., a now-defunct, Chicago-based roofing company that performed the work on the Williams home under contract to Sears.
Attorneys representing Sears and Diamond Exteriors, disputes whether Williams was injured at all. Sears also claims that the Williams family is trying to use a recent big settlement in an unrelated carbon monoxide case to squeeze Sears for more money.
Since the lawsuit was filed, Diamond's officers have disappeared and Sears has been fined by the presiding judge in the case for not producing discovery documents in a timely fashion. The family is seeking compensatory damages from Sears. Joey Williams' medical expenses are minimal because there is little that can be done for him medically. But the family contends that he will need lots of assistance in the future, especially after his grandparents are no longer around. While the family's attorneys say they haven't yet determined how much in damages they will seek, their defense attorney says the family is seeking more than $ 3 million.
Diamond Exteriors ceased operations in June. Its officers and employees can't be located, according to Latimer, leaving Sears to defend the case on its own. While Diamond is still a co-defendant, all of its arguments and pleadings have been stricken by the judge.
Recently, the judge sanctioned Sears for not complying with the Williams family's discovery requests. Attorneys for Sears claim that the retailer should not be held liable for Diamond's work. He also charges that it's wrong for the Williams' attorneys to try to use a recent large settlement in another carbon monoxide poisoning suit to force a larger settlement than is warranted against Sears. The owners and insurers of an apartment complex in northwestern Miami-Dade County recently reached a $ 29.6 million settlement in May in a negligence suit brought by seven residents of the Terra Cotta Place Apartments who claimed they suffered brain damage. According to the Williams suit, on Aug. 24, 1996, Joseph Williams signed a contract with Sears to have his roof replaced. The work began on Sept. 2. By Sept. 6, Joey already was experiencing mild symptoms of what later was found to be carbon monoxide poisoning, including headaches, dizziness and vomiting.
The suit alleges that the roofers removed an exhaust vent connected to the house's hot water heater. When the job was finished, the roofers failed to replace the vent, the suit alleges. This caused the release of large amounts of carbon monoxide gas into the Williams home; the fumes were most heavily concentrated in Joey's bedroom. The gas wasn't detected until almost a month later, when an independent air-conditioning company detected the un-connnected vent. Subsequently, a city gas inspector, after being called to the house, red-tagged the house for improper venting.
One clue that something was wrong was that Joey's pet parakeet and cockatoo both died shortly after the roofing work was completed, according to court documents. Joey Williams was hospitalized at Aventura Hospital and Medical Center, but the effects of the carbon monoxide had already caused irreparable brain damage, according to the suit. "There is no treatment that can make Joey whole," Goldberg says. "This young man's future has been greatly tarnished."
Sears' attorneys will challenge whether Joey suffered any injuries at all. He said that since the alleged injury, some of Joey's standardized test scores at school have actually improved. "Behaviorally, I don't know if anything is wrong with him." Sears' attorney also questions the family's handling of Joey's medical care. He claims that the family waited five years before seeking medical advice or attention for Joey's condition. But attorney for the plaintiffs says that's not true, and that the boy's condition was diagnosed during his first visit to the hospital in 1996; he stressed that there was no effective medical treatment which could have reversed the brain damage.
While Sears did license its name to Diamond, defense attorneys assert that Sears never agreed to accept liability for Diamond's work. Both sides agree that there was no written disclaimer in the roofing contract that Sears accepted no liability.
Williams' attorney argues that Joseph Williams dealt with Sears directly while arranging for the roofing work to be done. Williams called Sears as a result of a newspaper ad for roofing services placed by Sears, talked with a Sears representative before the work commenced, signed a contract which prominently mentioned Sears and paid with his Sears credit card.
Latimer insists that Joseph Williams signed a contract exclusively with Diamond Exteriors. Attorneys not involved with the case say the question of whether retailers can be held liable for the actions of their home-service contractors depends on factual findings that must be made by the judge or jury.
A personal injury lawyer and partner at Herman Sloman & Mermelstein in Miami, says retailers have been held liable for the negligent acts of their outside service vendors. But the court must look closely at the contract signed by the customer to determine how the retailer portrayed its role in the work and its relationship to the service provider. "The ultimate question is whether the principal is controlling the acts of its agent," Herman explains.
Diamond Exteriors is a former subsidiary of Chicago-based Diamond Home Services Inc., a leading national marketer and contractor of installed home improvement products, including roofing systems, fencing and gutters. Diamond Exteriors marketed and installed these products under the Sears name via a license agreement. It served clients in 44 states. The parent company is not named as a defendant in the suit because the agreement Diamond Exteriors signed with Sears was exclusive of the parent company, according to both sides in the case.
In cases involving Traumatic Brain Injury, it is essential that measures be taken promptly to preserve evidence, prove the nature and extent of your injuries, and to enable expert medical witnesses to support the cause of your injuries. If you or a loved one has suffered what you believe may be a traumatic brain injury from an accident, call now at or CLICK HERE TO SUBMIT A SIMPLE CASE FORM. Don't delay! You may have a valid claim and be entitled to compensation for your injuries, but a lawsuit must be filed before the statute of limitations expires.