Tuesday, May 20, 2014

Verdict in Oil and Gas Fracking Nuisance Lawsuit

In follow up to my recent post on Pennsylvania private nuisance lawsuits to battle harms caused by oil and gas fracking I stumbled upon a recent $3 million verdict in Texas on a nuisance lawsuit.  Here are a few links to articles about the notable nuisance case, one of the first of its kind (most of these lawsuits are settled before trial):

Fracking Went On Trial

Texas Family's Nuisance Complaint Seen as a Win Against Fracking

 Jury Awards Texas Family $2.9M For Fracking Nuisance Claim

Law360.com reports that the Parrs (the injured family) had sought damages from Aruba Petroleum Inc., alleging the 22 wells Aruba operated within a two-mile radius of their land exposed them to hazardous gases, chemicals and industrial waste that made them so sick they couldn’t work and at times had to live in Bob Parr's office instead of at their home. The Parrs attributed their illnesses to benzene, toluene, ethylbenzene, xylene and other volatile organic compounds used to frack the wells, and said their home had been assaulted by smells and noise from the wells since drilling started.

Reports indicate that in a 5 to 1 verdict, the jury did not find Aruba’s conduct was abnormal and out of place for its surroundings but said it did take intentional steps to cause substantial interference with the Parr family’s use of its 40-acre homestead west of Fort Worth. The jury did not find Aruba acted with malice, and rejected the Parrs’ claim for exemplary damages, but awarded them damages for physical and mental pain and anguish and for loss of market value for the land.  The Parrs were represented expertly by Texas trial attorney Brad Gilde of Gilde Law Firm based in Houston, Texas.

There is little doubt with all of the oil and gas drilling occurring right now in our state that many Pennsylvania residents are experiencing the same type of symptoms as the Parrs.  Because of this amazing verdict oil and gas companies will hopefully take notice of the risk they face from substantial verdicts if they do not safely undertake their oil and gas fracking.

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Monday, May 19, 2014

Pediatrician Criticizes Fisher Price Rock n' Play Sleeper - Provides Grounds for Lawsuit?

Pediatrician's critique of Rock n' Play Sleeper May Provide Basis for Child Injury Lawsuit

As a parent of two small children I was quite interested to learn that Fisher Price's Rock n' Play Sleeper was the subject of a compelling article authored by pediatrician Natasha Burgert, MD titled, Dear Fisher Price...

As a pediatrician and parent, Dr. Burgert felt it was irresponsible for Fisher Price to promote the Rock n’ Play™ Sleeper as an safe, overnight sleeping option for infants. 

Dr. Burgert's concern focused on three particular infant safety issuesleading her to conclude that the Rock n’ Play™ Sleeper should not be used for extended, unobserved infant sleep for the following reasons. First, design features of this product are known to increase the risk of sudden infant death syndrome (SIDS). Second, there is a possible connection with extended sleep in teh Rock n' Play and the development of infants with brachycephaly/plagiocephaly and torticollis as a direct result of using this product. I have written about plagiocephaly previously here.  Finally, infants are often left with poor sleep habits that continue long beyond the product’s use.  Keep in mind that these critiques are from a highly qualified pediatrician who took it upon herself as a doctor and mother to publicly voice her concern about this product.

Dr. Burgert's article was followed up by another pediatrician, Roy Benaroch, M.D. in 2013 titled, "The Fisher-Price Rock ‘n Play Sleeper is NOT for sleeping."  Dr. Benaroch echoed the same concerns as Dr. Burgert and concluded that the current language of the Rock n' Play remains inconsistent with the American Academy of Pediatrics published detailed guidelines about safe sleeping environments for babies.  Dr. Benaroch's takeaway as of April 2013 was that, "the Fisher-Price Newborn Rock ‘n Play Sleeper does not meet the standards established by the AAP for safe sleep. Parents, do not leave your babies sleeping in this gizmo. Their safety is too important."

From what I can tell, since Dr. Burgert authored this article in 2012, Fisher Price has slightly modified the language in its promotional materials for the Rock n' Play.  The current language on the Fisher Price website states, in part:  "The seat is also inclined, which makes napping more comfortable for babies who need their heads elevated.  And with help from mom, baby can rock the day away--soothe, nap or play."  Fisher Price seems to now stress that the Rock n' Play is only for napping during the day.  Nevertheless, it appears that Dr. Benaroch believes the revised language remains out of line with current Pediatric recommendations.

Moreover, on Amazon.com, however, where the product is actively marketed and sold, the product description is much different, stating, "The Fisher-Price Newborn Rock 'n Play Sleeper provides a comfortable, safe place for baby to sleep overnight, or a convenient place for baby to relax during the day."  This suggestion that babies may safely sleep overnight in this product runs afoul of the suggestions of Dr. Burgert.

The bottom line from this blog's perspective is that any parent whose child has developed a head deformity or worse that they feel is related to the Rock n' Play should first consult their pediatrician and second consider consulting an attorney.

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The seat is also inclined, which makes napping more comfortable for babies who need their heads elevated. And with help from mom, baby can rock the day away—soothe, nap or play! - See more at: http://www.fisher-price.com/en_US/brands/babygear/products/51903#sthash.kjz6nAsT.dpuf
The seat is also inclined, which makes napping more comfortable for babies who need their heads elevated. And with help from mom, baby can rock the day away—soothe, nap or play! - See more at: http://www.fisher-price.com/en_US/brands/babygear/products/51903#sthash.kjz6nAsT.dpuf
The seat is also inclined, which makes napping more comfortable for babies who need their heads elevated. And with help from mom, baby can rock the day away—soothe, nap or play! - See more at: http://www.fisher-price.com/en_US/brands/babygear/products/51903#sthash.kjz6nAsT.dpuf
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Intertek Testing Services Hit with $6 Million Verdict for Faulty Safety Testing


Intertek Testing Services Hit with $6 Million Verdict in Botched Safety Testing Lawsuit 

$5 Million in Punitive Damages Assessed

Below is the pretrial statement I filed on behalf of my client, Pittsburgh-based Brand Marketing Group in a lawsuit that resulted in a $6 Million verdict against Intertek Testing Services.  Most of the court record is available through the western district's PACER website.


Here is a link to an article in the Pittsburgh Post-Gazette about the case- O'Harra Firm Wins $6 Million Verdict.  Here is another article that appeared in the Legal Intelligencer- In Space-Heater Testing Suit.  Not surprisingly, Intertek is appealing the verdict and seeking to limit the amount of damages rendered against it.

PRETRIAL

The American National Standards Institute (ANSI) establishes standards for commercial products that help assure the safety and health of American consumers.[1] ANSI standards are a technical expression of, among other things, how to make a product safe.[2] To assure compliance to applicable ANSI standards, companies have their products checked by third party agencies.[3]

The Defendant, Intertek Testing Services, N.A., Inc., d/b/a Intertek Testing Services (“Intertek NA”), is a third party testing agency with the power to determine whether a given product meets legally mandated safety requirements for sale in the United States. Appendix Ex.24 (“Curkeet Depo.”) 66:18-25; 67:1-18.[4] Companies depend on Intertek NA to ensure the safety of their products.[5] Appendix Ex.6. In turn, product safety testing assures consumers that products in their homes such as smoke alarms and carbon monoxide detectors, are safe.[6] Appendix Ex.5. Compliance with safety standards helps avert company and community catastrophes. With Intertek NA’s great power comes the responsibility to make sure that its product safety testing procedures are performed properly by engineers with sufficient training, knowledge and experience. Curkeet depo. 55:1-16.

Plaintiff, Brand Marketing Group, LLC d/b/a Thermablaster (“Brand”), is a limited liability company based out of Pittsburgh, Pennsylvania, owned solely by David Brand. Brand imports and sells vent free gas heaters in the United States under the brand name “Thermablaster

Intertek NA, is a subsidiary corporation of Intertek Group, PLC (“Intertek Group”), a multinational inspection, product testing and certification company “with over 35,000 people in 1,000 locations in over 100 countries.”[7] Intertek Testing Services Shenzhen, Ltd., (“Intertek Shenzhen”) is a separate corporate subsidiary of Intertek Group located in Guangzhou, China. The Guangzhou laboratory (“Guangzhou lab”), where the product safety testing here at issue took place, is a branch of Intertek Shenzhen. Appendix Ex. 25 (“Starr Depo.”) 24:15-23.

On July 4, 2010, prior to Brand’s involvement, Intertek NA executed a testing and Certification Agreement with Chinese manufacturer, Reecon M & E Co. Ltd., (“Reecon”) related to heaters separate from the Thermablaster. Appendix Ex. 3.

In December 2010, following an indication of intent to purchase Thermablasters by Ace Hardware Corporation (“Ace”), Brand contacted Reecon regarding large-scale manufacture of the heaters. Second Amended Complaint ¶ 21, 23. Brand received purchase orders from Ace on April 26, 2011.[8] Appendix Ex.7. Brand then learned of the need to have the Thermablasters safety tested to the ANSI standard Z.21.11.2B.2b (“ANSI Z.21.11.2B”). Appendix Ex.2 (“Brand Aff.”) ¶3. Contemporaneously, Brand attended a Hearth, Patio & Barbecue Expo wherein he encountered a vendor booth maintained by Intertek NA employees. Brand Aff. ¶5,6. Brand was advised that Intertek NA could perform the needed testing. Brand Aff. ¶9. Brand was provided a promotional flyer that advised of Intertek NA’s experience testing hearth products and to visit Intertek NA’s website at www.intertek.com for more information. Appendix Ex.26; Brand Aff. ¶10 .

Intertek NA’s Misrepresentations

Brand visited www.intertek.com and saw, inter alia, Intertek NA’s representation of expertise in testing products to any ANSI standard.[9] Brand Aff. ¶13-15. Resultantly, Brand acquiesced to Reecon’s plan for Intertek NA to test the Thermablasters. Brand Aff. ¶16. The definition of “expert” is “having, involving, or displaying special skill or knowledge derived from training or experience”. With respect to testing products to ANSI Z.21.11.2b, Intertek NA possessed no knowledge, training or experience. Intertek NA falsely represented itself.

The Thermablasters were tested at the Guangzhou lab. Starr Depo. 42:2-7. The Guangzhou engineers conducted two tests to determine compliance to ANSI Z.21.11.2B, an ITS Construction Review and a Test Data Sheet (“Safety Tests”). Curkeet Depo. 61:16-25; 62:1-7; 159:1-9. The Guangzhou lab determined that the Thermablaster complied with all requirements of ANSI Z.21.11.2b. Appendix Ex.13,14. The Safety Tests were completed by July 22, 2011. Id. Shortly thereafter, the Guangzhou lab forwarded the Test Data Sheet to Reecon. Brand Aff. ¶22.

Coincidentally, Brand visited China from July 21, 2011 through July 27, 2011 to tour Reecon’s factory. Appendix Ex. Brand Aff. ¶20. On July 25, 2011, Brand was shown the Test Data Sheet. Brand Aff. ¶22. Brand saw that the heaters had been found to comply with all facets of ANSI Z.21.11.2b. Brand Aff. ¶23. After learning of the Thermablaster’s compliance, on July 26, 2011, Brand executed a purchase order for more than 5,000 heaters from Reecon. Appendix Ex.10,11; Brand Aff. ¶20. In October and November 2011, Brand shipped Thermablasters to the United States.

Intertek then issued a Test Report (“Test Report”) that reiterated the findings of compliance with ANSI Z.21.11.2b. Appendix Ex.15. Brand subsequently delivered the heaters to Ace. On February 29, 2012, Intertek NA issued an Authorization to Mark (“ATM”) for the Thermablaster. Appendix Ex.16.

Discovery of Intertek NA’s False Statements

Intertek NA’s representations of expertise, results of the Safety Tests and Test Report were false. Appendix Ex.18; Curkeet Depot. 57:6-14 Following allegations of noncompliance by Ace and Brand’s competitor ProCom, Intertek NA undertook an internal investigation that revealed that the Thermablasters did not comply with ANSI Z.21.11.2b.[10] Appendix Ex.18.

Following Intertek NA’s compliance investigation, Curkeet, by email dated March 16, 2012, wrote “This was obviously GZ’s first project related to ANSI Z21.11.2. Clearly training and experience are lacking.” (Emphasis added). Appendix Ex.21. The same day, Graham Moxon, overseer of the project, stated via email that the Guangzhou engineers incorrectly approved the Thermablaster due to, “lack of knowledge of the product, training and interpretation of the specification.” (emphasis added) Appendix Ex.20. Curkeet testified that not only had the Guangzhou lab never tested to ANSI Z.21.11.2B before but that none of Intertek NA’s laboratories had ever tested a product to ANSI Z.21.11.2B before the Thermablaster. Curkeet depo. 57:6-14. Clearly one cannot truthfully claim to be an expert in something one has never before done.

The Safety Tests were false. An email from Moxon, on March 8, 2012, advised that at least two full sections from ANSI Z.21.11.2B were incorrect due to misinterpretation. Appendix Ex. 27. Worse yet, the Test Data Sheet, used by the Guangzhou lab in testing the Thermablaster was for the wrong standard. Appendix Ex.14; Curkeet Depo. 163:11-17; 166:10-20. Instead of the ANSI Z21.11.2b standard for vent free wall heaters, the Test Data Sheet was based on ANSI Z21.58- a standard relevant to Outdoor Cooking Appliances.[11] Id. Thus, instead of being tested to the requirements of the correct safety standard, the Thermablaster was tested to irrelevant standards including on for, “Combustion Open Top Broiler”. Id.

After learning that the Thermablasters did not comply with ANSI Z.21.11.2b, Ace requested a full refund from Brand. Ace then filed a lawsuit against Brand and obtained a default judgment for $611,060.45. Appendix Ex. ¶22. Brand has also lost all future business with Ace.

Brand will prove at trial that Intertek NA, negligently and fraudulently misrepresented itself to Brand’s detriment causing it damages as discussed herein.




[1] http://www.ansi.org/about_ansi/overview/overview.aspx?menuid=1#.UZTos8qZGjY


[2] https://www.ansica.org/wwwversion2/outside/PROfaq.asp?menuID=1


[3] http://www.iso.org/iso/home/faqs/faqs_conformity_assessment_and_certification.htm; see also https://www.ansica.org/wwwversion2/outside/PROfaq.asp?menuID=1


[4] All references to the record relate to the Appendix of Docket No. 78.


[5] http://intertek.com/about/


[6] http://intertek.com/product-safety-testing/


[7] http://intertek.com/about/


[8] Brand received initial purchase orders from Ace in April 2011. Brand then received revised purchase orders from Ace in June 2011with a May 2011 shipment date that was subsequently revised to November 2011.


[9] http://www.intertek.com/product-safety-testing/


[10] Intertek NA never discovered the noncompliance issue on its own.


[11] http://shop.iccsafe.org/ansi-z21-58-2007-csa-1-6-2007-outdoor-cooking-gas-appliances-pdf-download.html
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Pennsylvania Nuisance Lawsuit to Combat Fracking Harms

Oil and gas fracking can harm Pennsylvania residents.  A lawsuit can fix the harms.  Fracking can harm Pennsylvania real estate, causing the value of residents’ homes and property to decrease.  Oil and gas fracking has also been claimed to cause physical harms to people in certain circumstances.  While there are a number of possible claims that a Pennsylvania land owner may bring against an oil and gas company in this situation the most common and successful claim is for nuisance.

In Pennsylvania, one (in this case an offending gas company) is subject to liability for a private nuisance if, but only if, his conduct is a legal cause of an invasion of another’s interest in the private use and enjoyment of land, and the invasion is either:  (a) intentional and unreasonable, or (b) unintentional and otherwise actionable under the rules controlling liability for negligent or reckless conduct, or for abnormally dangerous conditions or activities.  Restatement (Second) of Torts §822.  The Restatement indicates that "any one of the types of conduct that serve in general as the bases for all tort liability may invade a person's private right of use or enjoyment of their land." Diess v. Pennsylvania Department of Transportation, 935 A.2d 895 (Pa. Cmwlth. 2007).The conduct of a person who intentionally invades such an interest must have been unreasonable under the circumstances for the interest owner to obtain relief, whereas, a person who unintentionally interferes with the use or enjoyment of another's land must have acted negligently, recklessly, or abnormally dangerously. Section 825 of the Restatement defines the term "intentional invasion" as follows:  An invasion of another's interest in the use and enjoyment of land or an interference with the public right, is intentional if the actor: (a) acts for the purpose of causing it, or (b) knows that it is resulting or is substantially certain to result from his conduct.  Diess v. Pa. DOT, 935 A.2d 895, 906, (Pa. Commw. Ct. 2007).

In evaluating a private nuisance claim, the key question is whether one person impaired another person's private right of use or enjoyment of their land.  To that end, liability for nuisance applies only when there is significant harm, which is a harm of importance involving more than a slight inconvenience or petty annoyance. An invasion of another's interest in the use and enjoyment of land or an interference with the public right is intentional if the actor (a) acts for the purpose of causing it, or (b) knows that it is resulting or is substantially certain to result from his conduct. Hughes v. Emerald Mines Corp., 303 Pa. Super. 426, 429, 450 A.2d 1, 2, 1982 Pa. Super. LEXIS 3965, 1 (Pa. Super. Ct. 1982).  An intentional invasion becomes unreasonable, if: (a) the gravity of the harm outweighs the utility of the actor's conduct, or (b) the harm caused by the conduct is serious and the financial burden of compensating for this and similar harm to others would not make the continuation of the conduct not feasible.  Id.  An intentional invasion of another's interest in the use and enjoyment of land is unreasonable if the harm resulting from the invasion is severe and greater than the other should be required to bear without compensation.  Id.

The facts of the Hughes case exemplify how a landowner in Pennsylvania may successfully bring a nuisance suit against an oil and gas company for nuisance.  Hughes concerned the complaint of landowners that a coal company operating on adjacent property caused the failure of one water-well and the pollution of a second well located on plaintiff-appellees' own land.  A jury found for the plaintiffs in the amount of $ 32,500, basing their measure of damages on the testimony of a local real estate dealer that the property had been worth $ 42,500 while served by two wells of pure water and that without a source of potable water the salvage value of the land together with a mobile home located thereon would be $ 10,000.

The Plaintiffs in Hughes had bought the property in quesiton by a deed, pursuant to a mining rights clause set forth in an earlier deed conveying to a predecessor in title. Thereafter they built a house and ultimately drilled two wells to supply water. These wells worked perfectly and supplied potable water for approximately 25 years.  The defendant mining company owned mining rights under the entire property.  The Plaintiffs owned the surface rights. 

In 1975 defendant began to expand its operations into a contiguous portion of land to Plaintiffs.  The two wells then went dry.  It was ultimately determined that the adjacent mining had caused damage to the wells.  The plaintiffs filed suit premised on a private nuisance theory.  Plaintiffs' expert witnesses estimated loss of value in the land without any source of usable water to be $ 32,000.  The nuisance claim was successful and a jury rendered a verdict in favor of Plaintiffs in the amount of $32,000.
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Wednesday, January 8, 2014

Pennsylvania Deposition Objections



In Pennsylvania deposition objections are a source of confusion and consternation for attorneys.  Some attorneys rarely object during depositions while others object after every question.  Because Pennsylvania courts seem to approach this issue on a case by case motion basis revolving around a broad, general rule (Pa.R.C.P. 4003.1) deposition objections are often abused by well-intentioned and unscrupulous attorneys alike (at least in the humble opinion of this author).  Beyond objections, what causes this attorney the most aggravation are instructions by opposing counsel for their client not to answer a question.

On this last point, Pennsylvania Rule 4003.1 suggests that the only areas of inquiry which are completely off limits are matters of privilege (“a party may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter”).  It could also be argued that completely irrelevant inquiries, those matters not calculated to lead to relevant information, are similarly off limits.  Curiously, I have rarely encountered an objection during a deposition  on the basis of relevance.  Additionally, it would be valid to instruct a witness not to answer questions that would violate a Court’s order or violate a contractual or settlement agreement provision (there may be some other technical situations that I am not thinking of, trade secrets, etc.).

Beyond the above, I see no other permissible reason for an attorney to instruct their witness not to answer a question.  Nevertheless, I seem to encounter this deposition obstacle often. 

For instance I just encountered such an instruction by opposing counsel.  The lawsuit concerns a slip and fall on tile floor in a fast food restaurant.  Pre-deposition discovery revealed that this establishment had had multiple instances of slips and falls prior to the subject fall.  The restaurants response thereto was questionable at best.

I asked the restaurant’s store manager who was on duty at the time of the fall a series of questions about whether, in his opinion, he believed it would be reasonable for the restaurant to act in certain ways in response to learning of a slipper condition on its property.  I eventually asked the witness whether he believed it would be wrong to ignore customer reports of a slipper condition.  This question drew a great deal of speaking from the other attorney (not necessarily an objection) followed by a blanket instruction not to answer the question.  When asked whether a privilege was being asserted the attorney indicated that the witness was not an expert and could not answer such question.  That was the end of that- quite frustrating.

Sadly, it appears that the only recourse to this type of improper instruction from an attorney defending a deposition is to file a motion to compel with the court and hope for the best.  Personally, I think the Pennsylvania procedural rule as to instructions not to answer should be more clearly delineated i.e an instruction prohibiting witness response may only be given for X, Y and Z.  Until that happens plan accordingly to minimize the opportunity of other attorneys to make such instructions and get to work on a well crafted motion to compel!
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Wednesday, June 5, 2013

Failure to Timely Treat Plagiocephaly Leads to Surgery, Disfigurement

 While deformational plagiocephaly in infants is not life-threatening, it can lead to disfigurement detrimental to children's well-being.  See, Diagnosis and management of deformational plagiocephaly.



The current recommendations for the prevention and treatment of infant plagiocephaly is: 1) more parental education is needed to minimize the development and progression of deformational plagiocephaly; 2) mild deformity can be treated with repositioning and physical therapy protocols; and 3) severe deformity is likely to be corrected more quickly and effectively with cranial orthosis (when used during the appropriate period of infancy) than with repositioning and physical therapy. See, Diagnosis and management of deformational plagiocephaly.

In 2008 a verdict was rendered for a child left with permanent deformity due to a failure to diagnose plagiocephaly.  As a result of their newborn's untreated plagiocephaly condition (which prevented conservative treatment), the child's parents brought legal action against the five physicians at the child's pediatrics group. The family was represented by Ronald M. Schiffman.

The child's parents maintained that their child was born with plagiocephaly. At four months of age, one of the physicians noted the disorder and told the parents to alter the way the infant lay in his crib. The parents alleged that the pediatrics group treating the infant did not properly treat the disorder and a window closed for conservative treatment. The parents maintained that instead of repositioning therapy, the child should have been prescribed an orthotic helmet to normalize the shape of the skull.

As a result, the child's condition was not addressed with helmet therapy until ten months but by which time such treatment was futile. Unfortunately, the infant was caused to undergo extensive craniofacial surgery at 13 months of age. He had a second related surgery at six years of age and now has a scar across the top of his skull from the area of the left ear to the right ear. The plaintiff parents contended that the child suffers emotional distress due to the scarring.

The defendants contended that the disorder was not severe in the infant plaintiff's case, that they treated the child appropriately and properly, and maintained that the infant plaintiff had not required the surgeries that were performed.

After several days of trial, the jury found three of the defendant physicians, plus a non-party physician, to be liable and awarded the plaintiff $ 590,000 for past pain and suffering and $ 1,410,000 for 66 years of future pain and suffering.

Such lawsuits can be easily avoided through better parent education and more vigilant examination of infant's skulls during the first few months of life.  Plagiocephaly is a condition that can be easily prevented at little to no cost.  Pediatric offices should make it standard practice to have detailed conversations with parents about plagiocephaly and torticollis shortly after a child is born.  There is really no reason for anything otherwise.

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Tuesday, March 19, 2013

Customer Left Alone on Treadmill in Sears Falls Down

Sears Corporation was sued in premises liability for a fall sustained by a customer enticed to try out a treadmill.  Pennsylvania personal injury lawyer  Joseph Chaiken of Philadelphia, Pennsylvania obtained a $150,000 verdict in this fall down lawsuit of Gerben v. Sears Roebuck.

In this case, the female plaintiff, in her 60's at the time, suffered injury in a fall which occurred at the defendant's department store as an alleged result of the negligence of a store employee in leaving the plaintiff on an activated treadmill for an extended period of time. The plaintiff contended that she fell as she attempted to deactivate the treadmill. The plaintiff customer testified that a sales representative employed by the defendant Sears invited her to try out one of the floor model tread mills on display. As the plaintiff was operating the treadmill, the salesman walked away. The plaintiff testified that before the salesman walked away, she specifically asked him how to deactivate the machine. The plaintiff related that when she attempted to deactivate the machine as per the salesperson's previous instructions, the machine failed to turn off and instead, began to run faster, causing her to be thrown to the floor.

The plaintiff introduced an incident report of the accident written by the defendant's manager. The report stated that "customers should not be left alone on the treadmills." The statement was allowed into evidence as an admission by a party.

The plaintiff's treating physician testified that the plaintiff suffered epicondylitis (inflammation) of the elbow as a result of the fall, for which surgery was performed. The plaintiff's husband testified that as a result of the injuries suffered in the accident, he is now forced to perform all duties required of maintaining the household.

The defendant denied that the plaintiff was left alone on the treadmill and argued that the plaintiff was comparatively negligent in attempting to operate the equipment on her own. The defendant additionally argued that the plaintiff's complaints pre-existed the subject accident, noting that the plaintiff had been previously treated for arthritic hip problems prior to the subject fall.

The jury found the defendant 75% negligent and the plaintiff 25% comparatively negligent. The $ 150,000 gross award was molded accordingly.

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