Thursday, December 29, 2011

U-Haul Worker Found To Have Grabbed Patrons Testicles

Intentional and negligent infliction of emotional distress in Pennsylvania appear to be topics of interest for many Pennsylvania residents.  As I have written in the past, the law in PA makes it difficult to establish valid claims of emotional distress.  With that in mind, I thought it would be beneficial to review some PA verdicts and settlements from the past few years that involved claims of negligent or intentional infliction of emotional distress to see the types of facts that establish such claims.

In Blakely v. U-Haul of Pennsylvania, the plaintiff brought suit against the defendant, U-Haul Company of Pennsylvania ("U-Haul") and one of its custodians, for negligence, assault and battery and intentional infliction of emotional distress as a result of an incident which occurred at a U-Haul storage facility in Philadelphia. The plaintiff also asserted additional claims of negligent hiring, supervision and training against U-Haul. The defendant, U-Haul, stipulated to the agency of the custodian at its facility and, therefore, agreed to be held liable for his actions, but disputed that the plaintiff was assaulted as he alleged.

At the time of incident, Blakely was a 49 years old. He testified that in June 2008 he went to the defendant U-Haul's storage center in Philadelphia, where he leased a storage locker. Blakely alleged that as he was putting things into his storage space the defendant custodian assaulted him.  The plaintiff testified that he arrived at the facility just prior to closing time to store a mattress and box springs in his storage locker. Blakely said that the defendant custodian advised him that it was closing time and that the plaintiff had to leave. The plaintiff claimed that he responded that he was not going to leave until he put his mattress into the storage space. The plaintiff alleged that, at that point, the custodian grabbed him behind his neck, then by the testicles, dragged him to the elevator and threw him against the wall inside the elevator. The defendant custodian then took the plaintiff to the exit door and shoved him out of the facility.

As a result of the assault, Blakely claimed that he suffered serious injuries to his groin, back and head . He was treated in a hospital emergency room immediately after the incident with complaints of scrotal injuries and abrasions to his left fourth finger. The plaintiff was examined and diagnosed in the emergency room with a testicular contusion. Blakely was forced to undergo physical therapy, including diathermy, ultrasound, hydrocollator packs, analgesics, muscle relaxants, electric stimulator, galvanic muscle stimulator, panabrator massage and exercise rehabilitation. His therapy continued from February 8, 2008 until July 8, 2008.
During his care and treatment, evidence showed that the plaintiff was referred for an MRI, which revealed disc herniations at the L3-L4 and L4-L5 and L5-S1 levels with thecal sac compression. His MRI also indicated an L2-L3 disc bulge and EMG tests were positive for bilateral L4-L5 radiculopathy. The plaintiff claimed that his lumbar condition resulted from the assault. The plaintiff also claimed that the assault caused cervical sprain and strain and contusions and abrasions. The plaintiff claimed total past medical expense of $ 20,337.

The defendant custodian testified that the plaintiff arrived after closing time and refused to leave the premises. He testified that he took the plaintiff by the wrist and walked him to the elevator and that the plaintiff then exited the facility on his own.  Additionally, the deposition testimony of an eyewitness, another employee of the defendant, was also read into evidence. This witness corroborated the testimony of the defendant custodian that the plaintiff was simply led from the facility by his wrist.

The defense also argued that the plaintiff's lumbar condition preexisted the date of the incident. The plaintiff's physician conceded that the condition may have been preexisting and aggravated by the subject incident. The plaintiff's doctor testified that there was no way to be certain because the plaintiff had not undergone a prior MRI which could be compared with his current condition.  Evidence showed that the plaintiff had sustained three to four prior injuries to his neck and back dating back to the late 1980s and 1990s.

The primary liability defense was that the plaintiff was lying about the incident and was never assaulted. An emergency room diagnosis of testicular contusion, however, seemed to confirm the plaintiff's allegations and contradicted the defendant custodian's testimony that he simply led the plaintiff to the elevator by the wrist. In weighing the credibility of the witnesses, the jury may also have considered the co-employee relationship between the defendant custodian and his eyewitness who attempted to corroborate the defendant's testimony that he did not assault the plaintiff.

Plaintiff's counsel additionally faced a causation defense which challenged the plaintiff's most serious injury to his lumbar spine. The plaintiff's physician was unable to definitively attribute the plaintiff's lumbar disc herniations to the assault; but he persuasively testified that, if the condition was preexisting, it was significantly aggravated by the incident.

The court granted the plaintiff's motion in limine to preclude the defendant from introducing evidence regarding the plaintiff's alleged use of alcohol. Plaintiff's counsel maintained that the defendant had only conflicting evidence that the plaintiff smelled of alcohol on the night in question and appeared "tipsy", which the court agreed was insufficient evidence of intoxication.

The jury found for the plaintiff in the amount of $ 630,000.

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