WORKER/WORKPLACE NEGLIGENCE

$257,287 Verdict in Forklift Accident

Salvatore v. Viking Sports Cruisers Inc., 09-cv-04817-NLH-KMW; U.S. District Court; Judge Noel Hillman, Camden; Oct. 5.

Facts & Allegations: Truck driver Enrico Salvatore claimed he was injured on June 10, 2008, while delivering 16-foot aluminum beams to Viking Yacht Company in New Gretna.

Salvatore said he began to assist a Viking forklift operator in offloading the beams by looping a canvas strap around the bundle and suspending it from a forklift tine.

Due to the location of the 388-pound bundle and the length of the tines, the strap had to be placed near the end of the tine, according to Salvatore.

After the bundle had been lifted, the operator backed the load away from the truck, and stopped while Salvatore exited the truck bed. As Salvatore reached up to guide the load being lowered, the strap slid off and the load fell, striking Salvatore on his biceps and forearms and knocking him to the ground, he claimed.

Salvatore suffered a labral tear to the left shoulder, which required two surgeries.

Salvatore sued Viking for negligence.

He claimed that its employee violated Occupational Safety and Health Administration regulations, including failing to secure the load before handling it. The complaint further claimed that Viking failed to adequately train its forklift operators and maintain equipment.

A vocational rehabilitation expert for Salvatore concluded he cannot return to employment as a truck driver, but can return to lighter, sedentary-type work. The expert projected Salvatore’s wage loss at a minimum of $722,904.

Viking asserted that Salvatore’s claim was barred or limited by his comparative negligence and that the accident happened on account of Salvatore’s acts and/or omissions.

The defendant also claimed that Salvatore had negligently placed the strap too close to the end of the tine and that as a forklift operator, he was well aware of OSHA regulations.

The defense denied that the accident caused the shoulder tear, and said Salvatore suffered only minor injuries and his injuries were the result of a pre-existing problem.

The defense also accused Salvatore of misrepresenting and exaggerating his injuries.

The jury found Viking 60 percent negligent and Salvatore 40 percent and awarded $257,287, molded to $154,372 to account for the comparative-fault finding.

Plaintiff Attorneys:Steven Gillman, Michael S. Levin, Gillman & Levin, Marlton.

Defense Attorneys:Jeffrey Carton, Barry Cepelewicz, Richard Nealon, Meiselman, Denlea, Packman, Carton & Eberz, White Plains, N.Y.

Trial Details: trial length: 7 days; jury deliberations: 5 hours; jury poll: 8-0.

Plaintiff Experts: Ronald Cusumano, materials handling, Hopelawn; Michael Sidor, M.D., orthopedic surgery, Mount Laurel; Robert P. Wolf, Ed.D., M.B.A., vocational assessment, Cherry Hill.

Defense Experts: Steven Lisser, M.D., orthopedic surgery, Red Bank; Robert McAdam, P.E., mechanical, Greenville, N.C.; Sonya Mocarski, CRC, vocational rehabilitation, Atco.

PRODUCTS LIABILITY

$5,000 Verdict in Suit Alleging Burn From Cleaning Product

Neil v. Shingle Care LLC, BUR-L-2830-10; Burlington County Superior Court; Judge Marc Baldwin; Sept. 7.

Facts & Allegations: Martin Neil suffered third-degree burns to one of his feet on Aug. 1, 2009, reportedly while applying a corrosive cleansing product to the roof of his home.

Neil was hospitalized for 10 days and underwent debridement surgery.

He required high-powered antibiotic medication after surgery. He was taking an anticoagulant for a pre-existing cardiac problem, and it was necessary to wean him off it to avoid a potentially negative interaction with the antibiotic. This allegedly caused Neil a great deal of anxiety, for which he claimed a psychological overlay to his primary injury.

Neil’s wife joined in the action, asserting a per quod loss-of-consortium claim.

Neil brought a product liability suit against the product’s distributor, Shingle Care LLC; the supposed manufacturers of the product, Enterprise Management Unlimited LLC and Enterprise Management Unlimited of Central Florida; and Spotts Inc., the hardware store where he had purchased the product.

Neil claimed the principal of Shingle Care had acquired the formula to a product called Shingle Premium Roof Care, which, when combined with water, becomes a corrosive cleaning agent capable of cleaning roof shingles.

While mixing the product with water and applying it to the roof, the solution dripped onto Neil’s shoe, he claimed. It soaked through and caused chemical burns to his foot. The compound was a base, as opposed to an acid, which caused Neil not to feel the extent of the burn until he removed his shoes and socks later in the day.

Neil’s complaint alleged that the defendants had been obligated to place proper warnings of the potential risk of injury.

Shingle Care defaulted.

Enterprise Management Unlimited asserted that it was acquired by Enterprise Unlimited of Central Florida before manufacture of the product. It obtained a summary-judgment dismissal on that basis.

Enterprise Management Unlimited of Central Florida and Spotts argued that it had been Shingle Care’s responsibility to label the product. They asked the jury to blame Shingle Care, and to some degree, Neil.

The jury found that the defaulting party, Shingle Care, had been negligent in failing to provide adequate warnings.

The jury attributed 95 percent of the liability to the defaulting distributor and 5 percent to Enterprise Management Unlimited of Central Florida.

No liability was found against Spotts.

The damages award was $5,000. The theory of liability against Enterprise Management Unlimited of Central Florida was based on strict liability; while it is responsible for its proportional share of the award, it is not jointly liable for the percentage of responsibility apportioned to the defaulting distributor.

Plaintiff Attorney:Eric Dakhari, Archer & Greiner, Haddonfield.

Defense Attorneys: Patricia Henrich, Reilly, Janiczek & McDevitt, Merchantville (for Spotts Inc.); none reported for Shingle Care LLC; Philip Ryan, German, Gallagher & Murtagh, Philadelphia (for Enterprise Management Unlimited LLC); Edward Thornton, Methfessel & Werbel, Edison (Enterprise Management Unlimited of Central Florida).

Trial Details: trial length: 4 days; jury deliberations: 2.5 hours; jury poll: 8-0.

Plaintiff Expert: Stanley Wilcox, ergonomics/human factors, Philadelphia.

Defense Expert: None reported.

This report is based on information from plaintiff and defense counsel. The defaulting distributor and its principal were not asked to contribute.

MOTOR VEHICLE

Defense Verdict in Car Accident

Fullerton v. Savi, ESX-L-8036-10; Essex County Superior Court; Sept. 7.

Facts & Allegations: Ricardo Fullerton was driving east in the left lane of I-78 in Berkeley Heihs Township on Jan. 28, 2010, when a car in the adjacent center lane, driven by Isabel Savi, allegedly swerved into the right side of his vehicle.

The accident reportedly happened in inclement weather with reduced visibility.

Fullerton allegedly aggravated pre-existing neck injuries and suffered new disc bulging and herniation.

He treated conservatively with physical therapy.

Fullerton sued Savi for negligence.

Savi claimed that a truck in the lane to her right began to encroach into her lane, and she was trying to avoid an accident when the collision with Fullerton occurred.

Savi blamed Fullerton for not being aware of the circumstances of the developing accident.

The defense orthopedics expert said Fullerton suffered no new permanent injury.

The jury found Savi had not been negligent.

Plaintiff Attorney: Richard Kuhrt, Elizabeth.

Defense Attorney: Kimberly Espinales-Mahoney, law office of Edward Hoagland Jr., Mount Laurel.

Insurer: 21st Century.

Trial Details: trial length: 3 days; jury deliberations: 15 minutes; jury poll: 6-0.

Plaintiff Expert: Steven Nehmer, M.D., orthopedic surgery, Union.

Defense Expert: Douglas Chalmers, M.D., orthopedic surgery, Florham Park.

This report is based on information from plaintiff counsel. Defense counsel did not return telephone calls.

The cases that appear here are derived from VerdictSearch New Jersey, an affiliate of the New Jersey Law Journal. For more reports from VerdictSearch, or to request research, go to VerdictSearch.com or call 1-800-832-1900.