Date of Verdict:

January 24.

Court and Case No.:

C.P. Philadelphia No. 091003603.

Judge:

Gary F. DiVito.

Type of Action:

Personal injury.

Injuries:

Biceps tear.

Plaintiffs Counsel:

Michael O. Pansini and Steven Mezrow, Pansini & Mezrow, Philadelphia.

Defense Counsel:

Jack Snyder, Rawle & Henderson, Philadelphia, for L.F. Driscoll; Michael Detweiler, Marshall Dennehey Warner Coleman & Goggin, Philadelphia, for Philadelphia D&M.

Plaintiffs Expert:

Stephen Estrin, liability, Sarasota, Fla.

Defense Experts:

Dr. Robert S. Cargill II, bioengineering, West Deptford, N.J.; Jerry Purswell, engineering, Colorado Springs, Colo.

Comment:

A Philadelphia judge has entered a nonsuit in a case involving an elevator mechanic who claimed he was injured when the protective flooring on a construction site slipped while he was moving an elevator door, causing the door to fall on him.

According to the plaintiff’s pretrial memorandum, plaintiff Darrin Ulmer was working as an elevator mechanic for ThyssenKrupp Elevator Corp. during the construction of the Comcast building in Philadelphia in 2007.

ThyssenKrupp typically used hoists or service elevators to move elevator doors to various levels of a building for installation, but, in this instance, defendant general contractor/construction manager L.F. Driscoll Co. ordered ThyssenKrupp to stack the doors in the lobby of the building, the plaintiff’s memorandum alleged.

Because the lobby floor was finished marble, ThyssenKrupp and defendant Philadelphia D&M Inc. installed a protective floor, but during the course of moving one of the doors to a drywall cart nearby, the floor gave way and the door fell on Ulmer, according to the plaintiff’s memorandum.

Ulmer ruptured a tendon in his biceps, which required surgery, and now suffers from complex regional pain syndrome, sympathetically mediated pain syndrome, left brachial plexopathy, as well as left median, radial and ulnar neuropathy, scapular winging, long thoracic neuritis, depression and anxiety, according to the plaintiff’s memorandum.

The plaintiff alleged in his memorandum that Philadelphia D&M had breached industry standards by using a polypropylene protection board and failing to tape down the edges, causing it to slip.

Meanwhile, the plaintiff’s liability expert, Stephen Estrin, opined in his report that L.F. Driscoll was liable for using a Corex floor covering that did not have the structural integrity to support the workers as they moved elevator doors, the plaintiff’s memorandum said.

Estrin also said in his report that L.F. Driscoll failed to make either the freight elevators or the exterior hoist at the loading dock available for moving the elevator doors, according to the plaintiff’s memorandum.

But L.F. Driscoll argued in its own pretrial memorandum that the floor covering was safe and did not move.

According to L.F. Driscoll’s memorandum, its own employees, as well as employees of ThyssenKrupp and Philadelphia D&M, testified that the floor covering was secured by tape according to industry standards and that they never had any prior problems with the floor covering moving.

L.F. Driscoll said in its memorandum that its bioengineering expert, Dr. Robert S. Cargill II, opined that any force applied to the protective floor covering horizontally would not have caused it to move.

Engineering expert Jerry Purswell further opined that it was unnecessary to tape the outer edges of the surface because the floor covering was already taped together at its seams.

L.F. Driscoll argued that Ulmer was negligent for attempting to lift an elevator door that weighed anywhere from 125 to 300 pounds.

Cargill said in his report that Ulmer’s injury was likely the result of his losing control of the heavy door and then trying to regain control of it.

L.F. Driscoll also argued that if there was any problem with the floor covering, liability should fall to Philadelphia D&M, which was responsible for installing and inspecting the flooring.

Philadelphia D&M argued in its own pretrial memorandum, however, that there was no mention in any of the preliminary reports following the accident that the floor covering had slipped.

Furthermore, like L.F. Driscoll, Philadelphia D&M argued in its memorandum that Ulmer was negligent for attempting to lift the door himself.

Ultimately, on January 23, following the close of the plaintiff’s case during trial, L.F. Driscoll filed a motion for compulsory nonsuit, arguing that Ulmer failed to present valid evidence to maintain his claims against the company and characterized Ulmer’s claims as "ever-changing."

According to L.F. Driscoll’s memorandum in support of its motion for nonsuit, Ulmer presented no firsthand witness testimony at trial corroborating his claims of how his injury occurred.

L.F. Driscoll said in its nonsuit memorandum that neither Ulmer nor his co-workers testified that they actually saw the floor covering move.

On January 4, 13 days into trial, Philadelphia Court of Common Pleas Judge Gary F. DiVito granted the motion for nonsuit and dismissed the case, entering judgment in favor of L.F. Driscoll and Philadelphia D&M.

L.F. Driscoll’s attorney, Jack Snyder, said he thought DiVito was "right on" in his decision to grant the motion for nonsuit.

Ulmer’s attorney, Michael Pansini, could not be reached for comment at press time.

Philadelphia D&M’s attorney, Michael Detweiler, also could not be reached.