James Mahar of Ryan Ryan Deluca in Stamford ()
James Cleveland v. Staples: A truck driver who claims that a piece of ice fell off the roof of a Staples warehouse in the Dayville section of Killingly and struck him in the head was unable to convince a jury recently that the office supply chain store was liable for an injury that has kept him permanently out of work.
On Feb. 3, 2011, at about 7 p.m., James Cleveland was placing chocks under the wheels of an 48-foot trailer at a Staples distribution warehouse when he claims a piece of ice fell off the roof and hit him in the head.
Cleveland worked for JB Hunt Transport Services. The 53-year-old had been driving tractor-trailers for 27 years but in 2010 began working as a yard jockey for JB Hunt at the Staples warehouse. JB Hunt has a contract to provide shipping services for Staples at the Dayville location.
As a yard jockey, Cleveland’s job was to move trucks and trailers around the warehouse parking lot and drive them to the shipping and receiving bays of the facility as needed. It was his responsibility to inspect the vehicles that he moved around the lot, checking the condition of the lights, tires and other equipment.
That winter had seen several heavy snowfalls and JB Hunt workers had been told to be vigilant about watching for snow and ice buildup on the tops of the trailers that could fly off and hit other motorists. It wasn’t Cleveland’s job to remove the snow and ice, but it was his responsibility to notice it.
That evening, Cleveland had to move a 48-foot trailer. As he got out of the rig, he hunched over to place chocks by the tires to prevent the trailer from moving while it was parked. At that point, he was hit in the head with a chunk of snow and ice and lost consciousness. When he awoke, he noticed the ice near him. Nobody witnessed the incident.
Cleveland ultimately suffered a neck injury from the incident and needed surgery, called an anterior cervical fusion, during which two cervical disks were replaced and a metal plate was inserted to stabilize the spine.
Cleveland claims the surgery did not alleviate his neck pain and he has not returned to work since the incident. He also lost three teeth while being administered anesthesia during surgery. A defense lawyer said this can happen during anesthesia if a patient needs dental work.
After the accident, Cleveland received workers’ compensation benefits through his employer. He later filed a lawsuit against Staples.
Cleveland, through his attorney, Neil Johnson, of AAAA Legal Services in Hartford, claimed there was ice and snow on the building overhang, that Staples knew about it, and that workers were dodging falling ice throughout that day.
But, according to Staples’ lawyer, James Mahar, of Ryan Ryan Deluca in Stamford, the circumstances surrounding Cleveland’s injury was “suspicious.”
“The plaintiff’s story just didn’t sound right,” said Mahar.
A facilities manager at the warehouse testified about the snow and ice removal procedures. Supervisors were worried about the roof collapsing because the facility has a flat roof. The day before Cleveland’s mishap, the facilities manager testified that he went up on the roof and saw no ice or snow on the overhang. “Had the facilities director seen anything, he would’ve addressed it,” said Mahar.
Later, Mahar discovered from the workers’ compensation file that Cleveland told his JB Hunt supervisor that he was hit by ice and snow which fell from the top of the rig, not from the Staples warehouse overhang.
“Once we got this report we’re like, ‘We’re trying this case’,” said Mahar. The defense attorney said the two sides were considering going through a mediation process to settle the dispute until Mahar learned that there was a good chance that the ice fell off the truck.
Mahar said Cleveland sought $1.5 million in damages and later would have settled for $950,000.
Instead, there was a bench trial in Hartford Superior Court before Judge Robert Vacchelli. Evidence presentation lasted for two days last fall. Vacchelli then issued a written ruling a few months later.
In his decision, the judge also called Cleveland’s credibility into question. For instance, Cleveland told medical personnel at Day Kimball Hospital that he was hit in the head by 200 pounds of ice. “If he was hit by a chunk of ice weighing 150 to 200 pounds, he wouldn’t still be here,” said Mahar.
Mahar also said there would have been noise from the metal overhang on the Staples building if snow or ice was sliding off it. Mahar said the plaintiff claimed to hear no noise prior to the ice falling on him.
Ultimately, in the judge’s view, Cleveland failed to prove his injuries were Staples’ fault.
“There was no persuasive evidence that ice and snow fell from the building, particularly in view of the fact that there was an overhang in the bay area that would have caught or diverted any such falling ice and snow in the location where the plaintiff was working on the truck on the evening in question,” wrote Vacchelli. “To the contrary, the court finds that the plaintiff was, most likely, struck by ice and snow that fell from the roof of the truck, as reported in the only written report of the incident recorded on the evening of the incident.
“That material,” continued the judge, “most likely had become loose when the plaintiff moved the truck and it fell from the roof of the trailer while he was chocking the wheels.”
Cleveland’s attorneys could not be reached for comment. Johnson is serving a suspension from the practice of law for all of 2014.