$3,400,000 – Painter Fall

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 heal.

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 & Bendesky. Mongeluzzi handled the products liability side of the case while Kwass, an associate with the firm, dealt with the negligence issues.

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 said.

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 itself.

“Eliminating the possible defenses was one of the keys, along with two great expert witnesses and the factual discovery,” Mongeluzzi said.

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 children.

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.

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