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ARTICLE ID 6905

$________ GROSS Negligent design and installation of shelving rack unit - Plaintiff sprinkler fitter falls from height of 30 feet - Herniated cervical and lumbar discs - Two cervical fusions - Future lumbar laminectomy.

Cook County, Illinois

The plaintiff was a 31-year-old sprinkler fitter working on the construction of a Kmart distribution center. While sitting atop a shelving rack unit designed and installed by the main defendants, the plaintiff slipped off the edge and fell 30 feet to the ground. The plaintiff sustained herniated cervical and lumbar discs and underwent two cervical fusion procedures. His doctor also recommended a lumbar laminectomy which the plaintiff had not yet undergone at the time of trial. The plaintiff contended that the main defendants negligently designed and installed the shelving rack unit by improperly covering the unit’s top level with corrugated fire baffles which were undersized and unsecured.

The plaintiff asserted that one of the baffles came loose as he was sliding along the edge of the rack system, causing him to fall. The plaintiff also sued the company which supplied the fire baffles and Kmart Corporation, which oversaw the construction project. The plaintiff sought compensation for disability, pain and suffering, medical expenses and future wage loss.

Testimony established that the shelving rack unit was installed two weeks before the plaintiff’s fall and that it included corrugated steel fire baffles on top. The plaintiff and his co- workers used the racks as scaffolding as they installed the sprinkler system. One of the plaintiff’s co-workers who testified that he witnessed the accident said that first he saw a baffle fall, followed by the plaintiff.

The co-worker further testified that because he suspected the baffle slipped off the edge of the rack, he measured the baffle and found it was undersized. The baffle was not preserved and was lost due to no apparent fault of plaintiff. Rebutting the defendants’ assertion that the plaintiff’s failure to use fall protection equipment caused or contributed to his injuries, the plaintiff testified that he was following his employer’s directions, using the equipment given to him, and working as safely as possible under the circumstances.

According to testimony from the defendant installer’s representatives, the installer was responsible for putting the baffles in place and making sure they were properly sized. The installer’s representatives admitted that the baffles could slide off the rack system only if they were undersized. Representatives of the defendant baffle manufacturer testified that the baffles were not designed to support the weight of a person. However, the plaintiff’s structural engineering expert testified that the baffles were strong enough to support over ________ pounds and a concentrated load of nearly ________ pounds. The expert also pointed out that according to literature issued by the manufacturer, the baffles could support a distributed load of over ________ pounds.

The expert concluded that the only explanation for the baffle slipping was that it was undersized.

The plaintiff suffered no fractures in the fall. He was taken to the emergency room where he was examined for blood in his kidneys and cardiac instability. He discharged himself from the hospital the same day and returned to work several days later. The plaintiff eventually had an MRI which showed a C4-5 herniated disc and he underwent a C4-5 disc fusion procedure. The C5-6 disc space was fused five years later.

The plaintiff also apparently suffered an L4-5 herniation in the fall and his neurosurgeon recommended a laminectomy. The plaintiff, who missed one year of work and then returned to his pre-accident trade, testified that he decided to delay the surgery and would not have the operation for another three years when he will be fully vested in his union’s pension program. The plaintiff’s doctors testified that due to his injuries and resulting limitations, the plaintiff should change his occupation. The plaintiff testified that once he has the surgery, he will follow his doctors’ advice and quit working as a sprinkler fitter.

The main defendants denied they were negligent and maintained that they never intended the system to be used as scaffolding by laborers such as the plaintiff. The defendants also claimed that the plaintiff assumed the risk of injury and was contributorily negligent for failing to use fall protection equipment.

The plaintiff settled with Kmart for $________ prior to trial. In pre-trial settlement negotiations, the plaintiff demanded $________ while the defendant contractor and defendant installer offered a total of $________.

At trial, the plaintiff requested a verdict of $________. The jury found the rack contractor and installer 88% at fault and the plaintiff 2% contributorily negligent. The remaining liability was assessed against Kmart (3%) and the plaintiff’s employer (7%). The jury also determined the plaintiff’s damages totaled $________, consisting of $________ for disability, $________ for past pain and suffering, $________ for future pain and suffering, $________ for past medical expenses, $________ for future medical expenses, $________ for past wage loss and $________ for future wage loss. The defendants’ post-trial motions were denied and the case is currently on appeal.

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