Date of Verdict: Jan. 31.
Court and Case No.: C.P. Sullivan No. 2011-CV-101.
Judge: Russell D. Shurtleff.
Type of Action: Personal injury.
Plaintiffs Counsel: Jeffrey P. Goodman, Robert J. Mongeluzzi and Andrew R. Duffy, Saltz Mongeluzzi Barrett & Bendesky, Philadelphia.
Defense Counsel: Benjamin A. Nicolosi Jr. of Marshall Dennehey Warner Coleman & Goggin in Scranton, Pa., for Poly-San; Joseph F. Van Horn Jr., Fallon Van Horn, Philadelphia, for Lewis Crawford; John Solt, Slusser Law Firm, Hazelton, Pa., for Barry Weller; Michael A. Giannetta, Snyder & Associates, Plains, Pa., for Gerald Grater.
Plaintiffs Expert: Dr. Guy Fried, medical expert, Philadelphia; Mona Yudkoff, rehabilitation, Bala Cynwyd, Pa.
Comment: A man who was rendered quadriplegic when two of his relatives accidentally tipped over the portable toilet he was using in an attempt to play a practical joke on him has settled with the toilet’s manufacturer and installer, as well as the two relatives, for a total of $5 million.
According to the plaintiffs’ pretrial memorandum, plaintiff Donald H. Adams III went on a camping, hunting and fishing trip with his cousins-in-law, defendants Gerald Grater and Barry Weller, to a lodge that did not have indoor plumbing.
While there, according to the plaintiffs’ memorandum, Adams went to use the portable toilet and Grater and Weller decided to play a practical joke on him by backing their truck up to the portable toilet unit’s door in order to lock him inside.
Grater and Weller then proceeded to bang on and shake the portable toilet unit, inadvertently causing it to tip over, according to the plaintiffs’ memorandum.
Adams fell and landed on his neck, rendering him quadriplegic, the plaintiffs’ memorandum said.
According to the plaintiffs’ memorandum, Adams suffered laminar fractures to his fourth and fifth cervical spine vertebras and a burst fracture to his fifth cervical spine vertebrae.
Adams was rushed to Robert Packer Hospital and then airlifted to Thomas Jefferson University Hospital for surgery, according to the plaintiffs’ memorandum.
After seven days, he was transferred to Magee Rehabilitation, where he remained for two months, according to the plaintiffs’ memorandum.
Adams is now completely paralyzed from the shoulders down and has a neurogenic bladder and bowels, the plaintiffs’ memorandum said.
Plaintiffs medical expert Dr. Guy Fried opined that Adams’ injuries are permanent, according to the plaintiffs’ memorandum.
Plaintiffs rehabilitation expert Mona Yudkoff projected the cost of Adams’ lifetime medical needs at over $6 million, and possibly as much as $10 million.
Adams and his wife filed suit against Grater and Weller, along with the portable toilet’s manufacturer, Poly-San, and the unit’s installer, Lewis Crawford, according to the plaintiffs’ memorandum.
Adams alleged in the memorandum that Poly-San was negligent for failing to provide ground-spikes with the unit, despite the fact that the base includes holes for such spikes.
According to the plaintiffs’ memorandum, Henry Davis, a corporate designee for Poly-San, admitted in a deposition that, by failing to provide stakes, the company did not supply users with every piece of equipment necessary to stabilize the portable toilet unit.
Adams also alleged in the memorandum that Poly-San was negligent for building the portable toilet unit with “an excessively light base, made of plastic and weighing about 40 pounds, giving the unit a high center of gravity and making it prone to tipping.
According to the plaintiffs’ memorandum, Poly-San sold a heavier plastic base at about double the price.
Davis testified at deposition that the heavier base weighed somewhere between 110 and 130 pounds, according to the plaintiffs’ memorandum.
Adams further alleged in the memorandum that Crawford was negligent for installing the unit on the side of a hill, at a 14-degree angle, and propping it up with wood to make it level.
At deposition, Crawford’s son, Clifford Crawford, testified that he had been aware of other instances where portable toilet units were tipped over and said he had been worried about the angle at which the unit that injured Adams had been installed, according to the plaintiffs’ memorandum.
In addition, Adams alleged in the memorandum that Lewis Crawford was negligent for failing to stake the unit into the ground.
“Crawford’s decision to place the PTU on the side of a hill, prop it with lumber, and not stake into the ground resulted in the unit being unsafe and unstable,” the plaintiffs’ memorandum said.
Lewis Crawford filed an amended answer to the complaint and a cross-claim against Grater and Weller, which Poly-San joined, alleging that Grater and Weller were solely responsible for Adams’ injuries.
“The discovery in this case has established that the unit was pushed over by Weller after the unit was in a rocking motion caused when it was hit by Grater’s pick-up truck when it backed up,” the defense filing said, relying on the Pennsylvania Supreme Court’s 2012 ruling in Reott v. Asia Trend, which held that “highly reckless” conduct is an affirmative defense in products liability cases, requiring defendants to show that a plaintiff’s highly reckless conduct was the sole or superseding cause of the plaintiff’s injuries.
The defense argued in the filing that the accident in Adams would not have happened had it not been for the conduct of Grater and Weller.
Ultimately, the parties settled the case for a total of $5 million on Jan. 31.
Counsel for the plaintiffs, Jeffrey P. Goodman and Robert J. Mongeluzzi, said the settlement released all four defendants but it was unclear how payment of the $5 million would be split between them.
Counsel for Grater, Michael A. Giannetta, said his client tendered a motor vehicle insurance policy worth around $25,000 early in the case.
Counsel for Lewis Crawford, Joseph F. Van Horn Jr., declined to comment.
Counsel for Weller, John Solt, also declined to comment.
Counsel for Poly-San, Benjamin A. Nicolosi Jr., could not be reached for comment at press time.
— Zack Needles, of the Law Weekly