Friday, February 8, 2013

Fall on No-Skid Paind Leads to Settlement

Switching gears to Pennsylvania premises liability slip and fall cases we turn now to Hess v. Shaz Convenience, Inc.  This was a fall down negligence lawsuit in Philadelphia that Susan Ayres and Anthony Lopresti of Hill & Associates did an awesome job on.

The facts of the case are that on Sept. 30, 2009, plaintiff William Hess, 31, a mortgage broker, dropped off his car for maintenance service at a Lukoil gas station in Philadelphia. After dropping off his vehicle, he walked through the parking lot to his friend's vehicle, where he had arranged to have his friend pick him up.

Hess alleged that, upon arriving at his friend's vehicle, he realized that he wanted to have the service mechanic rotate his vehicle's tires, which prompted him to turn around and walk back to the station's garage. As he stepped upon the sidewalk in front of the station's convenience store, his right foot slipped and his left leg came out from beneath him, causing his right leg to collapse. Hess then fell and landed in a split formation, with his left leg extended and his right leg underneath him. (There was a slight drizzle at the time of the accident.) Hess further claimed that his slip-and-fall was caused by a non-skid resistant paint which franchisee Shanz Convenience Inc. had applied to the subject sidewalk in June.

Hess sued Lukoil, its parent company (Getty Petroleum Marketing Inc.) and Shanz (which brought in paint-maker The Valspar Corp. as a third-party defendant on a theory of products liability - manufacturing defect), alleging premises liability.

Plaintiffs' counsel argued that Shanz was negligent for applying non-skid resistant paint -- instead of a skid-resistant paint -- to the premises sidewalk in spring 2009, which, combined with the weather conditions at the time of plaintiff's accident, exacerbated the slippery surface that the paint already had created. (These theories were supported by plaintiffs' architect expert.) Plaintiffs' counsel contended that Shanz recoated the sidewalk with a skid-resistant paint in May 2010. (Prior to the accident, Shanz had applied a skid-resistant coat for approximately eight years.) Counsel further argued that Shanz and Lukoil failed to properly maintain the premises.

The defendants denied the allegations. Shanz maintained that Valspar supplied the franchisee with defective paint. Valspar maintained that the paint was not defective and that Shanz used improper paint to coat the sidewalk. Lukoil denied any responsibility for the maintenance of the premises and claimed that it never directed Shanz to paint the sidewalk.

Hess was taken by ambulance to Jeanes Hospital, in Philadelphia, where he was diagnosed with five fractures (some of them were comminuted spiral fractures) at the bottom of his right tibia and fibula. Since Jeanes did not have an orthopedic surgeon at the time of Hess' arrival, he was driven by his wife to Virtua Voorhees Hospital in New Jersey, where his wife was a nurse. Hess was admitted at Virtua and underwent open reduction internal fixation on his leg, wherein a rod was inserted in his tibia and he was fitted with a Cam boot.

Four days later, Hess was discharged home, where he spent the next six weeks bedridden. After six weeks, Hess remained confined to his residence in a non-weight-bearing state for the next three months, during which time he relied on a walker. Afterward, the plaintiff upgraded to crutches for six months and then a cane for three months; Hess' Cam boot was removed 14 months post-accident, after which he was able to walk independently, albeit a limp. Hess sought to recover a medical lien of approximately $17,600.

In their respective reports, the plaintiff's non-treating family medicine and neurologist experts concluded that, as a result of the accident, Hess suffered post-traumatic accelerated degenerative changes (arthritis) in his right ankle and complex regional pain syndrome (CRPS, a/k/a reflex sympathetic dystrophy) in his right foot. Moreover, since his factures did not completely unionize, Hess could need future physical therapy.

The plaintiffs' vocationalist expert concluded that Hess would sustain a future lost earnings capacity, which was not disclosed. (At the time of the accident, Hess was making $40,000 a year; he had not returned to work at the time of the settlement.)

Hess has mobility problems which have forced him to resign from coaching his children's athletics. Due to his CRPS, he is unable to stand and walk for long periods of time. In addition, he suffers from anxiety and depression. He sought to recover damages for past and future pain and suffering, while his wife sought to recover damages for loss of consortium.

The shared orthopedic surgeon expert for Valspar and Shanz stated that Hess' fractures did fully heal; however, he still may need physical therapy in the future. The defense pain-management/anesthesiologist expert concluded that the plaintiff fully recovered and should be pain-free.

The parties settled for $700,000 during a mediated settlement. Shanz Convenience agreed to contribute $675,000 and The Valspar Corp. agreed to contribute $25,000. Lukoil did not contribute to the settlement. Share this post :
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