Tuesday, February 19, 2013

FedEx Worker Struck by 4x4 on Walmart Loading Dock Leads to Verdict

Walmart Pennsylvania injury lawsuits is the topic lately.  We turn now to another Walmart premises liability lawsuit arising from a dangerously placed 4x4 piece of wood on a Wal-Mart loading dock.  The 1997 case of Fichter v. Wal-Mart was brilliantly handled by Pittsburgh attorney Michael J. Colarusso.

This Walmart lawsuit was first tried in March, 1996 and resulted in an initial verdict of $ 223,500 with 24% comparative negligence placed on the plaintiff.  Following an appeal, the case was remanded by the Third Circuit for a new trial limited on the issue of damages only.

In this Walmart lawsuit plaintiff claimed that he was struck on the shoulder by a 4"x4"x16' piece of lumber which had been propped in the corner near the defendant Wal-Mart's loading dock door. The plaintiff claimed to have sustained a shoulder injury leading to the development of disabling long thoracic nerve palsy. He also alleged that a inguinal hernia was related to the accident.

The defendant denied that the accident occurred as alleged by the plaintiff and maintained that the plaintiff was comparatively negligent if the incident occurred at all. The defendant also disputed the causal relationship between the plaintiff's injuries and the alleged incident. The plaintiff testified that he was making a delivery for his employer, Federal Express Corporation, when a 4"x4"x16' piece of lumber which was propped in a corner near the Walmart's loading dock door fell and struck him in the shoulder. The incident occurred on the plaintiff's 28th birthday, June 15, 1992, according to the plaintiff's claims.

There were no eyewitnesses to the event, although the defendant's employees were in the vicinity and saw the plaintiff after the fact. The plaintiff testified that he saw the piece of wood in the same location two weeks earlier. An employee of the defendant also admitted seeing the wood for some period of time prior to the accident. The store's assistant manager admitted that the wood was a danger which should have been removed.

The plaintiff claimed that res ipsa loquitur applied and the Court charged the jury on that issue during the first trial. The plaintiff sustained what appeared to be a minor injury. Approximately eight hours later, he presented to the emergency room with complaints of pain in his shoulder and groin. He was subsequently diagnosed as having an inguinal hernia, which was surgically repaired. The plaintiff returned to work approximately five months post-accident following conservative treatment and arthroscopic surgery on his shoulder. The plaintiff's shoulder became progressively worse and he underwent open joint surgery 14 months post-accident. He missed another three months of work and then returned to his occupation as a courier for Federal Express. After working for approximately 13 months, the plaintiff developed long thoracic nerve palsy in his shoulder. The plaintiff's experts opined that the plaintiff's hernia and all of his shoulder problems were caused by the subject accident. The plaintiff claimed that he is permanently disabled from his employment as a courier. At the time of trial, he had returned to work in a lower paying position. The plaintiff's economist testified that the plaintiff's past and future loss of wages and benefits totaled approximately $ 750,000. The plaintiff also claimed approximately $ 48,000 in past medical expenses.

The defendant argued that the accident never occurred, or at least not in the way the plaintiff claimed. The defendant's employees testified that the piece of wood was only eight feet long, not 16' as alleged by the plaintiff. The defense also contended that the wood could not have struck the plaintiff with sufficient force to have caused his injuries if it struck him at all. Testimony presented by the defendant indicated that the plaintiff was using a dolly to load packages and was running. The defendant contended that the plaintiff must have bumped the wood, causing it to fall. The defendant additionally argued that since the plaintiff admitted seeing the wood in the same place two weeks before the incident, he assumed the risk, was contributorily negligent and that Walmart thus owed no duty to a business invitee who was aware of the dangerous condition. The defendant maintained that the injuries, if any, sustained by the plaintiff were minor in nature.

The plaintiff had a prior hernia and also had a prior shoulder injury and numerous prior neck and back injuries, according to evidence offered. The defendant's neurologist testified that long thoracic nerve palsy is caused by repetitive activities such as weight lifting, rather than trauma. The plaintiff's long thoracic nerve palsy is not related to the accident and is not disabling in any way, according to the defendant's neurologist. The defendant contended that the plaintiff had a long history of prior injuries and failed to report his prior shoulder injury during deposition testimony. The defendant's orthopedic surgeon testified that only the arthroscopic shoulder surgery could be related to this accident. He opined that the second surgery and the long thoracic nerve palsy were not related to the accident and that he expects the plaintiff to recover from the nerve palsy. The awarded the plaintiff $ 2,300,000 which included $ 300,000 to the plaintiff's wife for loss of consortium. The award was reduced by the 24% comparative negligence which was assessed against the plaintiff at the first trial. The plaintiff's request for delay damages of approximately $ 311,000 is pending.

While there were some good admissions from the Walmart employees in this case there were a lot of tough facts for the plaintiff to overcome.  For instance, how did this piece of wood suddenly come loose and strike plaintiff without being touched.  That is a tough contributory negligence argument to beat.  But attorney Mike Colarusso did it and should be commended in helping his client get a great verdict.

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