Premises Liability / Negligent Entrustment – Fall from Forklift – Wrist & Elbow Fractures.
Feb 21, 2012OUTCOME: $775,000.00 settlement 5 days before trial after a failed mediation. Defendant's insurance company refused to discuss any settlement for over 2 years.
A 57 year old sub-contractor was hired by a company to run computer cable along its warehouse ceiling. The client was lifted to the ceiling with a company forklift while standing inside a wooden crat ... e sitting unattached on the forks. When raised about 15 ft. high, the forklift “lurched” causing the crate and client to fall to the concrete floor, resulting in complicated fractures to his right elbow and left wrist, as well as some other minor fractures that healed without residual problems. The company’s forklift operator was not trained and certified as required by company policies and OSHA regulations. The sub-contractor sought Workers’ Compensation benefits from the company, which were denied, after which client sued the company under common law negligence theories. The company then claimed that client was a “statutory employee” with Workers’ Compensation being his exclusive remedy (where recovery of damages is very limited), but the court struck the defense on a summary judgment. The client had two surgeries to his wrist and multiple surgeries to his elbow, some of which related to treatment of a MRSA infection acquired in the initial surgery involving “fixation” hardware that was removed in a subsequent surgery. Two treating surgeons assigned permanent impairments ranging 13-22% to the left arm and 2-9 % to the right arm, and both doctors stated that client had post-traumatic arthritis which was most likely to get worse. The client was able to return to his usual occupation with no loss of future income anticipated. As in most premises liability cases, assumption of the risk and comparative negligence were serious concerns in plaintiff’s case.
