Court and Case No.:

N/A (confidential settlement)

Trial Judge:

Judge Barbara Areces

Plaintiff’s Attorney:

Brett Alan Panter, from the Law Firm of Panter, Panter & Sampedro, P.A., 6950 North Kendall Drive, Miami, Florida 33156. E-mail: bpanter@panterlaw.com; Website: http://www.panterlaw.com;

Defendants’ Attorneys:
Defense attorney’s name withheld as part of confidentiality agreement.

Description of Liability Aspect of Case:

A defendant in this case, was the forklift operator working for Forklift Company on March 14, 2007. Mr. Forklift Driver was working in the refrigerated area of an airline facility at Miami International Airport. Mr. Driver received his training from plaintiff’s employer and Forklift Company was still responsible for his training pursuant to contract although Forklift Company allowed the airport company to do the training for all forklift operations and operators.

Despite the training that the driver received, plaintiff claims he failed to recognize established safety rules. Plaintiff claimed pedestrians always have the right of way, including in this warehouse setting where forklifts were being operated. Plaintiff claims that the forklift operator failed to proceed with extreme caution and drove through opaque curtains separating the refrigerated warehouse from the remainder of the warehouse. Plaintiff claims the forklift driver drove backwards at a high rate of speed failing to stop before going through the curtains. The forklift driver collided with the plaintiff. The forklift driver acknowledged there was no doubt about his level of knowledge regarding pedestrian traffic. He also acknowledged he could not see through the curtain on the date of the accident.

Despite the forklift driver’s admitted awareness of the environment and pedestrian traffic, he acknowledged he never saw the plaintiff/pedestrian and never yielded to him. The forklift driver admitted that if he made a complete stop and inched little by little through the curtain that the pedestrian plaintiff would not have been injured.

Description of Plaintiff:

The plaintiff was a 48 year old single male and did not have any children.

Description of Injuries:

Plaintiff had traumatic crush injuries to his right foot. There were multiple surgeries including inserting K wires in his toes to try to save his foot. Despite the doctor’s best efforts the foot became gangrenous and required a “Chopart Amputation” of his foot a couple of months after the accident.

Four months after the accident due to plaintiff/pedestrian’s inability to walk and balance, he fell in the shower at home and suffered serious injuries to his right upper extremity including his shoulder. The plaintiff/pedestrian is currently completely disabled as a result of this accident and claims he cannot work at all and has applied for permanent total disability under Social Security.

Plaintiff’s life care plan reflects the fact that he needs assistance 7 days a week between 4 to 8 hours a day.

The defense disputed almost all aspects of damages in this matter and claimed that the plaintiff/pedestrian has overstated his damages.

Treating Doctors:

Dr. Alberto Abrebaya, foot surgeon. Dr. Emilio Suarez, pain management doctor. Dr. Christopher Brown, Orthopedic Surgeon. Dr. Angel Diaz, Psychiatrist.

Defense of this Claim:

The defendants denied liability and asserted that they were immune due to worker’s compensation immunity in Florida. The defendants also claimed that the plaintiff was comparatively negligent and the plaintiff’s employer was also negligent in failing to have proper policy and procedures in place and/or failing to enforce proper policies and procedures with respect to pedestrian access to a dangerous area where forklifts were operating.

The defense also claimed that the plaintiff/pedestrian was negligent and should not have been walking in the area where the accident occurred. The defense argued that there were policies in place at the plaintiff/pedestrian’s place of employment prohibiting him from walking in the area where the accident happened and requiring him to walk through the second floor hallway above the refrigerated warehouse and avoid the accident area. Defense argued that if the plaintiff/pedestrian followed this policy the accident would never have happened. The defense argued that the accident was a result of the plaintiff/pedestrian’s employer’s failure to properly train the plaintiff/pedestrian and failure to train other pedestrians and if such training took place this accident would never have happened.

The defense supported their position with witnesses from the facility testifying that there were monthly meetings and the area where the plaintiff/pedestrian’s accident occurred was unauthorized. The same witness also stated that these discussions regarding unauthorized area where this plaintiff/pedestrian was, occurred prior to the accident on March 14, 2007.

Defense also argued that the employer of the plaintiff/pedestrian was in complete control of the entire warehouse and they failed to post signs prohibiting pedestrian traffic near the opaque curtains in front of the refrigerated area. Signs were posted after the accident and the defense was arguing the fact that the signs were posted would be admissible evidence on multiple exceptions to the subsequent remedial measure rule.

Defense also argued that there should have been training seminars for all ground personnel asking them to stay away from the area where it was known the forklifts frequented.

Defense also argued that the plaintiff/pedestrian was aware of the danger and therefore assumed the risk and additionally was comparatively negligent.

Lost Wages:

Plaintiff was earning approximately $30,000.00 per year for approximately 20 years.

Expert Witnesses Hired by Plaintiff:

David K. Hoover from Forklift Training Systems and Lee Swanger, P.E., from Exponent Failure Analysis Associates.

Expert Witnesses Hired by Defendants:

Mark G. Strauss, Ph.D., mechanical/biomechanical engineer; Robert Weltman, forklift expert in training and operation; Michael Shahnasarian, Ph.D., psychologist and rehabilitation expert; Lance J. Lehmann, M.D., Anesthesiologist; Gary Ziegler, orthopedic surgeon.

Jury Verdict/Settlement:

This case was settled after approximately 10 hours at an all day mediation for $3.7 Million.

Comments:

This case was fought vigorously by the defendants.