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A Philadelphia jury yesterday awarded $85 million to a former medical student at the University of Pennsylvania who suffered a broken back when he fell into an open manhole at 19th and Walnut streets while walking to class in June 2004. But under the terms of a high-low agreement, the plaintiff will be paid $18 million, lawyers said. In total, the plaintiff will get $22.9 million when money from settlements struck prior to the trial is included. Lead plaintiff’s attorney Matthew A. Casey of Ross Feller Casey said Marcus Gustafsson was forced to drop out of medical school after the accident and that doctors say he is now totally disabled and will never be able to pursue a career in medicine. In the suit, Gustafsson blamed the accident on Trigen-Philadelphia Energy Corp., which owns the manhole and operates a steam-heat utility throughout the city. The case was captioned Gustafsson v. Trigen-Philadelphia Energy Corp. According to court papers, Trigen employees testified in depositions that the company was aware of numerous incidents in which its manhole covers had been stolen or removed by homeless people but took no steps to prevent future incidents. An engineer who testified as an expert for the plaintiff said in a report that Trigen had “failed to adhere to good engineering practice” because it had failed to weld shut the manhole covers “in the face of clear evidence that unauthorized individuals had gained access to this manhole in the past.” After a three-week trial before Philadelphia Common Pleas Judge Frederica Massiah-Jackson, the jury found that Trigen was 99.99 percent responsible for the accident and that Alexander Evans, a homeless man who was seen removing the manhole cover, was 0.01 percent responsible. The jury also specifically rejected Trigen’s argument that Gustafsson shared responsibility because he should have taken care as he walked on the sidewalk to avoid the manhole opening. Trigen had also brought cross claims against PNC Bank and two security firms in which it alleged that they shared responsibility for the accident because a security guard for the bank had witnessed the removal of the manhole cover and did nothing to stop it. But all of the cross claims were rejected by the jury on the grounds that the security guard, who is now deceased, was not yet working at the time and therefore was not acting within the scope of his employment. Casey was assisted in the trial by attorneys Thomas N. Sweeney and Joshua Van Naarden of Ross Feller Casey. In an interview, Casey said the high-low agreement promised a payment from Trigen of at least $1 million and capped his recovery at $18 million. Casey said Gustafsson will now recover a total of $22.9 million as a result of settlements struck prior to the trial. Roman Sentry, the security firm, agreed to pay $4.5 million, he said, and remaining defendants, including PNC Bank and the property owner, contributed a total of $400,000, Casey said. Trigen was represented by attorneys Robert Devine and Michael Horner of White & Williams. Devine could not be reached immediately for comment. In a statement, Trigen spokeswoman Cristin Brown said the company was pleased that the “extremely unfortunate” case had reached a resolution. “Fortunately, incidents of unlawful manhole cover removal by third parties, as was the case in this situation, have been rare over the course of Trigen’s 20-year operating history and, to the best of our knowledge, over the 100-year history of Philadelphia’s steam distribution system,” Brown said in the statement. In an interview, Van Naarden said Gustafsson shattered his spine in the accident and has had several spinal fusion surgeries. Van Naarden said the plaintiff’s engineering expert, Johann F. Szautner, told the jury that Gustafsson’s accident was foreseeable to Trigen. In his expert report, Szautner found that Trigen “knew of two prior instances where homeless people removed the manhole covers in Philadelphia” and was also aware of an “epidemic” of stolen manhole covers in Milwaukee. That knowledge, Szautner said in his report, “put Trigen on notice that an accident could occur like the one which caused Mr. Gustafsson’s injuries.” The report also said the manhole cover should have been secured by welding it shut, and that through a “very inexpensive” procedure, Trigen could have used a process of “tack welding” – welding the cover in two spots – which would have afforded Trigen easy access to its vaults because the welds may be broken with a hammer and chisel or ground off. “Welding would have been the easiest and cheapest way to secure the subject cover and all Trigen manholes in Philadelphia,” Szautner wrote in his report. Another method of securing the manholes would have been to install locks, the report said. “There are locks on the market which work on vented covers and do not pose dangers to pedestrians,” the expert report said. But Szautner concluded in his report that Trigen “made no effort to protect the public and thus was a direct cause” of Gustafsson’s accident. Van Naarden said an economist testified that Gustafsson’s projected lost earnings were in the range of $8 million to $18 million. Another expert, he said, testified about the cost of Gustafsson’s future medical care, which will increase when his condition worsens and he becomes wheelchair bound.

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