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$________ Premises liability - Plaintiff contractor obtaining tiles for customer trips over raised end of forklift tongues protruding from behind stacks of pallets and merchandise in cluttered tile warehouse - Severe shoulder injuries - Defendant initially denies incident occurred.

Passaic County, NJ

The plaintiff contractor, in his mid 50s, contended that when he visited the defendant’s showroom, he was directed into the warehouse area by a receptionist and accompanied by a supervisory worker when he tripped over forklift tongs whose ends were protruding from behind a stack of pallets and merchandise in the cluttered warehouse. The plaintiff further maintained that the hazard was heightened by the fact that the fork lift tongs were grey, the same color as the floor, and that he was distracted by searching the high shelving for tile. The defendant denied that the incident occurred.

The plaintiff contended that the injuries to the right, dominant shoulder included a fracture/dislocation, a full thickness tear and multiple partial tears. The plaintiff further maintained that although he had preexisting quiescent arthritis, he was unaware of it and had been able to work and otherwise function without any pain or limitations. The plaintiff contended that the fall awakened and aggravated the preexisting acromioclavicular arthritis.

The plaintiff would have also established that none of the three warehousemen had current forklift licenses and upon initial inspection of the forklift, the plaintiff discovered the manual was not stored with the equipment as required by OHSA. The plaintiff also maintained that although representatives of the defendant denied having any prior OSHA violations, and there were in fact two prior violations for misuse of a forklift attachment and cluttered blocked exits. The plaintiff’s engineer inspected the premises and also inspected a forklift, which the defendant later claimed was not the subject forklift, having disposed of it before the litigation. The expert, nonetheless, found numerous violations in the manner in which they maintained the remaining forklifts and warehouse.

The plaintiff required an initial arthroscopic surgery in New Jersey that was followed by an open surgery in New York. The New York surgeon was not available to testify on behalf of plaintiff. The plaintiff maintained that despite surgical interventions, he continued to suffer pain and overhead restrictions. The plaintiff missed 15 months from work as a sole proprietor contractor. The plaintiff contended that although he was able to return to work, he was limited in his duties as a general, bathroom, kitchen and household contractor. The plaintiff’s economist would have projected past and future lost profit/income that ranged from approximately $________ to approximately $________.

The plaintiff further asserted that because of the nature of the continuing pain, he would probably require shoulder replacement surgery in the future. The plaintiff contended that although such surgery would be expected to significantly help with the pain, he still would be left with substantial restriction of motion.

The defendant denied that the incident occurred. All showroom employees denied advising the plaintiff to go into the back with the supervisor and the supervisor denied accompanying the plaintiff. The defendant also maintained that a large sign on the door leading to the warehouse advised no admission and that if the incident occurred, the plaintiff was a trespasser. The plaintiff countered that the other side of the door contained a sign directing people back into the showroom. Further, the customer for whom the plaintiff was working at the time of the incident was prepared to testify that she too had been sent into the warehouse to shop on her own a few weeks before the incident.

The plaintiff further contended that the incident occurred on a Friday and that he brought himself immediately following to his regular doctor, where he reported a history of having just fallen over a fork lift in a tile warehouse. The plaintiff returned to the premises on Monday to assure that an incident report was filed. The plaintiff contended that the owner told him that they don’t generally fill out reports and that he should submit the medical bills directly to him, after which he would forward the bills to his insurance company, advising he had "great" insurance. The plaintiff maintained that the owner then chastised his employees in front of the plaintiff, shouting "That’s it. I don’t want nobody in this warehouse ever again." The plaintiff contended that he submitted the bills several times, and made multiple inquires as to the name and address of the carrier, because he had to confirm that his surgeon accepted such insurance, before having the surgery. The plaintiff maintained that after such inquires were repeatedly ignored, he sent the request by certified mail, return receipt requested along with another copy of the bills to date.

The plaintiff established that the mail was accepted by the defendant and that the defendant still did not respond. Regarding injuries, the defendant maintained that the plaintiff must have injured his shoulder while working in his contracting business, and in any event, alleged that the plaintiff could not prove that he was hurt on their premises since no one remembered his incident, and no police or ambulance responded.

The case settled prior to trial for $________.

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