A painter and his wife have received a $3.4
million settlement in an accident in which he fell more than 20
feet, suffering multiple leg fractures that have yet to fully
Kirk Sauer, 28, of Northeast Philadelphia, had sued on grounds
of products liability and negligence. The suit, which named five
defendants, sought damages for medical bills, loss of potential
earnings, pain and suffering, loss of life's pleasures and loss of
consortium for his wife. He was represented by Robert Mongeluzzi
and David Kwass of Saltz Mongeluzzi Barrett & Bendesky.
Mongeluzzi handled the products liability side of the case while
Kwass, an associate with the firm, dealt with the negligence
No trial date in front of Philadelphia Common Pleas Judge Allan
Tereshko had been set, and Mongeluzzi said mediator Ronald Scherr
had worked for months to bring the two sides together.
The accident occurred on May 20,1998, when Sauer was working at
a construction site in Malvern. He was injured when the scissor
lift - a motorized scaffolding - he was riding tipped over. One of
the lift's wheels fell into a hole, causing Sauer to fall.
Mongeluzzi and Kwass argued that the scissor lift lacked a
safety device that has been available since 1983 to prevent
tip-over accidents and that the general contractor, despite knowing
of the hidden floor hole, failed to cover it
The plaintiffs also charged that the leasing company, Austino's
Lift Trucks, and the company that lent the lift to Sauer's
employer, Voegele Mechanical Inc., were liable for providing a
defective product. The manufacturer, Time Manufacturing, was also
named in the suit
Sauer was a union painter working for M. Schnoll & Sons at
commercial and industrial sites. The day of the accident, Sauer was
working at the Cedar Hollow construction site, using a Time
Condor scissor lift to paint the atrium of a new building.
Mongeluzzi said the atrium was a concrete slab with numerous
cutouts where planters would eventually be placed. The day before
the accident Mongeluzzi said, the general contractor, L.E Driscoll,
held a safety meeting where it was specifically indicated that
planter holes presented falling and dipping hazards for workers and
needed to be securely covered.
Although Driscoll assigned one of its employees to cover the
holes, he failed to secure the plywood sheets to the floor or mark
the sheets with words of warning as required by guidelines of the
U.S. Occupational Safety and Health Administration, Mongeluzzi
Driscoll contended that it decided not to secure the plywood
sheets at the request of the tile subcontractor, Holzhauer Tile
Co., that was working on the floor. Mongeluzzi said Holzhauer
officials denied that allegation.
As for the products liability side of the case, Mongeluzzi said
the safety device, called "pothole protection," works by reducing
the ground clearance of the scissor lift automatically when the
platform on the lift is elevated. The device allows two bars, one
on the left side and one on the right side, to drop between the
front and rear wheels.
Mongeluzzi said various types of these devices have been in use
and that while the case was ongoing, Time officials admitted that
they were aware of them but chose not to incorporate them into
their own scissor lifts until the 2000 model year.
Mongeluzzi said he and Kwass effectively eliminated possible
defenses down to causation in an effort to force a settlement. One
defense in scissor lift cases is that the lift without the safety
device met with codes established by the American National
Standards Institute. But Mongeluzzi said that was inadmissible in
Pennsylvania because the issue in this case centered on the product
"Eliminating the possible defenses was one of the keys, along
with two great expert witnesses and the factual discovery,"
Sauer suffered multiple leg fractures. After surgery and
rehabilitation, his right ankle remained painful and unstable and
required fusion surgery in February. His lawyers also say he
suffers residual effects from head injuries as well as bouts with
depression. Because of the injuries, Mongeluzzi said, his client is
worried about his ability to support his wife and two small
Mongeluzzi said he had two key plaintiff witnesses lined up,
including a technical director for a leading scissor lift
manufacturer who was ready to testify that his company had been
using the protective device since 1987. A carpenter was prepared to
testify that the cutouts on the atrium floor presented a hazard and
an OSHA violation.
Time was represented by Bruce Duffield and Edward Gibbons of
Chicago's Lord Bissell & Brook. L.E Driscoll was represented by
James Donahue of White & Williams, and Austino's Lift Trucks
was represented by Edward McGinn of Marshal] Dennehey Warner
Coleman & Goggin. Voegele Mechanical was represented by Joel
Fishbein of Bennett Bricklin & Saltzburg, and Holzhauer was
represented by Marc Myers of DiDomenicis Myers & Liero.
Mongeluzzi said that he did not know how much each defendant had
agreed to pay and that Scherr had asked the plaintiff attorneys to
let him sort out that issue.