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ARTICLE ID 40369

$________ - PRODUCTS LIABILITY/UNSAFEWORKPLACE - FAILURE TO WARN CONCERNING USE OF LATERAL SUPPORTS ON AERIAL LIFT - LIFT TIRE FALLS IN PIT CAUSING TIP OVER - FRACTURE OF LEG AND ANKLE TO FIRST PLAINTIFF - FRACTURED CALCANEAL, RSD AND HERNIATED LUMBAR DISC TO SECOND PLAINTIFF.

Delaware County

This action stemmed from a workplace accident in which an aerial lift, being operated by the two male plaintiffs, dropped into a hole in the concrete floor of a construction project and tipped over. The defendants included the owner of the premises, the manufacturer of the lift, the equipment supply company which supplied the lift and an electrical subcontractor who had rented the lift. The plaintiffs’ employer was also joined as an additional defendant pursuant to an indemnity agreement with the defendant owner of the premises.

The plaintiffs, Stephen McHugh, then 30 years old, and Luke DeFelice, then 27, were employed as carpenters at the p 7 3 construction site of a chemical manufacturing plant. The design of the building required a hole in the concrete floor to accommodate a scale for weighing chemicals. Evidence showed that in December of ________, several open holes in the concrete floor were covered at the recommendation of an insurance representative.

Most other holes had been covered prior to this inspection.

However, progress photographs taken on March 3, ________, showed that the scale pit (a 42" long, 27" wide, 8" deep hole) was, again, left open. It is unclear who uncovered the hole.

On March 9, ________, a Certificate of Substantial Completion stating that the owner "shall take possession of the premises on March 9, ________" was issued by the architect and allegedly signed by the general contractor and the defendant owner. The plaintiffs claimed that the defendant owner also had the building re-keyed and agreed to provide heat, light, power and retain liability insurance as of March 9, ________.

On March 10, ________, the plaintiffs were painting a beam approximately 12 feet above the concrete floor. The plaintiffs received permission from the foreman of the defendant electrical contractor to use an aerial lift which was at the site. The Strato-Lift self-propelled lift was manufactured in ________ by the defendant manufacturer, sold to the defendant equipment supply company and rented to the defendant electrical contractor. The lift was equipped with stabilizers for lateral support. The plaintiffs were not using the stabilizers at the time of the accident and contended they were not aware of them.

The plaintiff McHugh was operating the lift when one of its tires went into the hole made for the scale, causing the lift to tip over and fall. The plaintiffs contended that the lift was defectively designed and manufactured in that the stabilizers should have been interlocked and the lift did not include a pothole protection device. The plaintiff also claimed that the defendant equipment supply company failed to adequately train the person who took delivery of the unit concerning the important safety features of the machine as required by ANSI standards.

The plaintiff DeFelice fractured his right leg in two places in the accident and shattered his ankle. Internal and external fixator devices were required and the plaintiff underwent three subsequent surgeries to remove the orthopedic hardware and to graft the ankle. The plaintiff DeFelice claimed to suffer significant arthritis stemming from the injury and a total right ankle fusion has been recommended. The plaintiffs’ economist estimated DeFelice’s loss of earnings as between $________ to $1.2 million. This plaintiff’s medical expenses were approximately $________.

The plaintiff McHugh was diagnosed with a fractured calcaneal (heel bone) as a result of the fall. He was unable to bear weight when the cast was removed and was diagnosed with reflex sympathetic dystrophy or complex regional chronic pain syndrome.

The plaintiff McHugh underwent five lumbar sympathetic blocks which were not successful. He then underwent a nerve deadening procedure which allegedly resulted in a nerve injury to his thigh. A spinal cord stimulator was recommended.

The plaintiff McHugh also claimed to have sustained a herniated lumbar disc in the fall for which a decompressive laminectomy was p 7 3 performed in June of ________. McHugh remained on crutches for approximately two years and contends that he still cannot bear weight on his left heel and requires the assistance of a cane to walk. McHugh was previously a competitive body builder who won the titles of Mr. Philadelphia and Mr. Delaware County. The plaintiffs’ economists estimated McHugh’s wage loss as between $1.4 to $2 million. He also claimed medical expenses of $________.

The defendant equipment supply company contended that it had trained the person from the defendant electrical contractor who took delivery of the unit regarding the existence and use of the stabilizers. The defendant electrical contractor denied that it received any such instruction. The defendants also claimed that the plaintiffs were overwhelmingly comparatively negligent in driving an elevated aerial lift into an open and obvious hole.

The defense alleged that the plaintiffs failed to heed the warnings plastered on the product which noted the existence and necessity of using the stabilizers. In addition, the defendant manufacturer denied that use of the stabilizers or the pothole protection device advocated by the plaintiff’s expert would have prevented the accident. The defendant property owner maintained that it did not sign the Certificate of Substantial Completion until April 5, ________ and did not take possession until after that date.

The case settled for a total of $________ for both plaintiffs.

The plaintiff DeFelice received 42.5% of the settlement and the plaintiff McHugh received 57.5%. In addition, a combined workers compensation lien of approximately $________ was waived for a total recovery of approximately $________. The defendant property owner and the plaintiffs’ employer paid $________ of the settlement (the property owner was contractually indemnified by the plaintiffs’ employer). The defendant manufacturer contributed its full policy limits of $________. The defendant equipment supply company paid $________ and the defendant electrical contractor paid $________.

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