Date of Settlement :February 18.
Court and Case No.: C.P. Lackawanna No. 11-CV-4671.
Judge: Terrence R. Nealon.
Type of Action: Premises liability.
Injuries: Fractures, disc herniation, paraparesis, mixed substance abuse in remission.
Plaintiffs Counsel: Jamie J. Anzalone, Anzalone Law Offices, Wilkes-Barre, Pa.
Defense Counsel: Scott D. McCarroll, Thomas, Thomas & Hafer, Harrisburg.
Comment: A man who fell about 30 feet down an elevator shaft has reached a $675,000 accord with the cultural center where he and his fellow caterers were setting up an event, his attorney has announced.
According to court records, plaintiff Patrick Barrett was working as a caterer for The Woodlands Inn in Wilkes-Barre and setting up a party for a local community organization at the Scranton Cultural Center in September 2009. At some point during the day of the event, it became known that one of the two elevators at the facility was not working. Luis Lozano, who worked at the cultural center and was a named defendant, asked the caterers for help fixing the elevator, including Barrett.
There were two elevators at the facility situated next to one another. The one on the right was not working, so Lozano stopped the left elevator on the fourth floor of the building so he could access the shaft to try to fix the right one.
According to the plaintiff’s settlement demand letter, in which Barrett asked for $1.2 million, the caterers were not informed that the left elevator did not have a floor in it. Lozano asked Barrett to shine a flashlight into the dark shaft so he could see better and Barrett obliged. Seconds later, he stepped sideways into the elevator shaft to get better positioning, not realizing the elevator carriage was stopped some floors above him. He fell between 25 and 35 feet, the letter said, landing on his rear end.
The plaintiff’s theory of the case was that the cultural center and its employee, who admitted to having minimal knowledge about elevator function, did not institute adequate safety precautions. According to the demand letter, Lozano testified that he remembered telling Woodlands workers there was no floor in the elevator during one of more than 10 depositions taken in the case of Barrett v. Scranton Cultural Center.
The plaintiff, however, pled that Barrett was never informed of the floorless elevator and, even if he had been advised, Barrett still contested that the center was liable under the facts he asserted.
"Simply put, this was a completely dangerous and unsafe working environment for caterers, who have absolutely no experience in the management and maintenance of elevators," the letter said. "Further, this work site was being run by the Scranton Cultural Center’s ‘handyman,’ who had little to no experience with elevators."
The defense, according to court filings, denied liability and was prepared to argue that Barrett assumed the risk of his injuries.
Barrett’s lawyer, Jamie J. Anzalone, also indicated in his demand letter that defense counsel indicated it had a number of pictures from Barrett’s Facebook account — an issue that is becoming more and more prominent in personal injury litigation.
Anzalone, in writing to defense attorney Scott D. McCarroll, suggested the photos may not even reach the jury and downplayed their potential impact if they were to be admitted in court. Unlike surveillance footage, Facebook photos are "misleading" because they present incomplete characterizations of the time period in which they were taken. Further, the photos would not impeach Barrett’s credibility because he testified he was going to bars, which was apparently what the photos depicted, he argued.
Anzalone said the case was interesting from a damages perspective because his client, who was not a candidate for surgery, developed an addiction to his painkillers after the accident and lost about 65 pounds as a result.
"We weren’t sure how that would cut with the jury," Anzalone said. "We really took the position that it was a sympathetic situation."
Anzalone said he "felt strong" on the liability, noting that the cultural center did not place a construction horse near the elevator or take other safety protocols. He added that he felt he could prove liability regardless of whether the jury believed Lozano told Barrett there was no floor in the elevator shaft. Either way, he said, the situation wasn’t safe.
"Here you have a handyman, for lack of a better term, working on an elevator with caterers," Anzalone said, referring to Lozano. "That was clearly the most unsafe option he had available to him."
Anzalone said the accord was reached during mediation, though a settlement has not been docketed.
McCarroll could not be reached for comment.
— Ben Present, of the Law Weekly