Verdicts

ST. LOUIS CITY - PREMISES LIABILITY

Type of Claim:
wrongful death of minor, apartment fire, failure to install and properly maintain smoke detectors; Plaintiff is the mother of decedent Nathan Irvin, who was about 3 years old at the time of his death. Plaintiff had rented a two-story townhouse at 2637 Vanity Fair Drive in St. Louis with her four children. Plaintiff claimed that on Sunday, May 5, 2002 she and three of her children, her baby Natalee and her sons Markus, age 8, and Nathan, age 3, were on the second story and her daughter Morgan, age 6, was on the first floor watching television in the living room. Plaintiff claimed that Morgan left the living room briefly and when she returned about five minutes later, she discovered a fire in the loveseat. She ran upstairs to tell her mother, Angela Brannon, grabbed the baby and ran back downstairs with Morgan and Markus. She attempted to put out the fire, but it quickly escalated out of control and she told Morgan to run to a neighbor for help. When Morgan opened the door, oxygen fueled the fire and all of them were forced to flee out the front door. When they were outside, they realized that Nathan was still upstairs and screaming for help. Plaintiff tried to go back into the townhouse, but the fire was too intense and blocked the stairwell to the second floor. The Moline Fire Protection District arrived at the scene within three minutes and rescued Nathan from the second floor, but he died at Christian Hospital about an hour later due to smoke inhalation and carbon monoxide poisoning. Plaintiff claimed the townhouse had only one smoke detector, which was located on the second floor at the top of the stairs. This was in violation of the applicable BOCA code and St. Louis County Building Maintenance code that required landlords to install an operable smoke detector on every floor of a multi-story townhouse. Further, plaintiff alleged that when she replaced the battery in that smoke detector at the end of October 2001, it did not function properly and she reported that to the maintenance department for the apartments. Maintenance records showed that the smoke detector was inspected and the battery was replaced again, but the smoke detector was not replaced. Plaintiff asserted that at no time during the fire incident did the smoke detector sound. The firemen found only one smoke detector at the scene, located at the top of the stairs on the second floor and testified that it was not activated at the time of the fire. Plaintiff claimed that if there had been a properly working smoke detector on the first floor where the fire started, as required by law, she would have had enough time to safely evacuate all of her children.Defendant Carmel Group, LLC owned the building and defendant Woodknoll General Partnership, LLC was the management company. Defendants denied negligence and contended that an insurance investigator hired by defendants' insurance company inspected the property several days after the fire and located and retrieved the smoke detector on the second floor, consisting of a body and plastic cover, as well as a plastic smoke detector cover only in the hallway of the first floor. Defendants' experts testified that plaintiff received adequate warning from her daughter, regardless of whether the smoke detectors sounded an alarm, that plaintiff should not have attempted to extinguish the fire herself and that she was comparatively at fault for failing to safely evacuate her son Nathan from the second floor. Defendants' insurer was Hartford Insurance

Editor's Note:
Plaintiff's attorney noted that an investigator for the St. Louis County Bomb and Arson Squad testified that the fire was of unknown origin caused by open flame ignition as opposed to a smoldering fire. A Bic lighter was located in the living room. Plaintiff claimed that she had problems with an electrical outlet behind the love seat where the fire started and acknowledged having decorative candles in the living room. However, the exact cause of the fire was never determined. Plaintiff's and defendants' experts agreed that the smoke detector found on the second floor did not show physical evidence of having activated at the time of the fire, using a process called acoustic soot agglomeration i.e. the pattern of soot on the smoke detector cover. The experts disagreed as to whether the smoke detector found on the first floor showed physical evidence of having been activated at the time of the fire.
Verdict:
Returned March 26, 2007 for plaintiff $2,239,000 with apportionment of fault 33% to plaintiff and 67% to defendant Woodknoll Partnership for a net verdict to plaintiff of $1,500,130.

ST. LOUIS CITY - F.E.L.A.

Type of Claim:
railroad machinist developed cumulative trauma disorder; Plaintiff, about 40 years old at the time, alleged that he worked for defendant at the North Little Rock Arkansas machine shops since 1998. Plaintiff claimed that his job duties required him to work a substantial amount of time with his arms elevated above his shoulders, lifting heavy impact wrenches to remove nuts from locomotive motors. Plaintiff alleged that NIOSH documents outlined risk factors for thoracic outlet syndrome (TOS) and his job duties required repetitive movements and lifting procedures that put him in the risk factor category for developing TOS due to his performing repetitive movements for at least 12% of his job duties. Despite his doctor's suggestion that he find a different job that didn't require lifting objects over his head, plaintiff contended that he returned to work and attempted to work his old job with more assistance and lighter lifting duties. Plaintiff wanted to work for the railroad until retirement because of his limited education and job skill history of only diesel mechanic skills. Plaintiff was earning about $49,000 a year plus fringe benefits at the time of trial. After about two years back on the job, his condition worsened and interfered with his ability to perform his job duties. Plaintiff produced medical records that showed no acute traumatic injury to his collar bone in the 1994 auto accident and his army medical records referred to his left arm, not his right arm.Defendant disputed that plaintiff had thoracic outlet syndrome and contended that he had carpal tunnel syndrome with subluxation dislocation of the collarbone that had occurred in 1994 from an auto accident. Defendant asserted that plaintiff had pre-existing symptoms of tingling in his right hand back to 1993 when he was in the armed forces. Defendant claimed that plaintiff's on-going complaints were attributable to his pre-existing conditions and were unrelated to his work environment. Defendant maintained that it provided adequate assistance and proper equipment for plaintiff to perform his work and that he was accommodated with lighter duties in accordance with his doctor's orders.

Damage/Injuries Alleged:
cumulative trauma caused thoracic outlet syndrome on the right side, required surgery; medical specials: paid by the railroad; wage loss: about $20,000 - $25,000 past + $1,500,000 future (plaintiff had been earning about $49,000 + benefits annually).
Verdict:
Returned September 17, 2004 for plaintiff $2,000,000

ST. CLAIR COUNTY - AVIATION

Type of Claim:
commercial aircraft collided with private airplane on runway, wrongful death to passenger in commercial aircraft; Plaintiff is the widow of decedent Larry Downing, who was about 57 years old at the time of his death. Plaintiff claimed that on November 19, 1996 her husband was a passenger on a United Express flight from Burlington, Iowa to Quincy, Illinois. When the United Express plane was attempting to land at the Quincy airport, it collided with a private airplane that was attempting to take off. The private plane was operated by defendants Laura Winkelman and Neil Reinwald. Plaintiff alleged that the crew of the United Express flight negligently chose a non-standard approach and landing runway to avoid a long taxi and expedite their arrival at the terminal even though they knew another aircraft was about to take off. Plaintiff contended that the crew did this because they had been on duty for twelve hours and wanted to get home. Plaintiff also claimed that the door to the United Express plane would not properly open after the collision. Decedent was seriously injured from the impact, but survived and subsequently died of smoke inhalation in a fire caused by the collision because the passengers could not escape from the plane due to the door that would not open. Plaintiff alleged that the door was improperly designed and the United crew was not properly trained to open the door. A United employee attempted to open the door from the outside but was not successful.Defendant United Airlines denied negligence and contended that its crew attempted to land safely and that its plane had the right-of-way. Defendant United claimed that the pilot of the private aircraft failed to keep a careful lookout and failed to yield the right-of-way to its plane. Defendant presented evidence that the investigation performed by the National Transportation Safety Board (NTSB) determined that the accident was caused by the negligence of the pilots of the private aircraft. Defendant United denied that the door of its plane was defect in design and contended that the door was damaged in the collision and could not be opened from either the inside or the outside due to impact damage.

Editor's Note:
The private aircraft was insured for $1,000,000 with Reliance Insurance Company. Reliance has filed an interpleader action in the U. S. District Court - Central Illinois to determine the rights of the various plaintiffs; a ruling regarding the distribution of the proceeds to satisfy the various claims is pending.
SETTLEMENT:
Reached May 2001 for plaintiff $4,000,000 with United Airlines only; the claims against the pilots of the private aircraft are pending in U.S. District Court, Central Illinois.

ST. LOUIS CITY - AUTO

Type of Claim:
two car, intersectional collision, minor passenger injured, uninsured and intoxicated driver; Plaintiff, Lee Collins, III, about 13 years old at the time, alleged that he was a passenger in a vehicle driven by his father, Lee Collins, Jr., that was struck by an uninsured motorist who ran a red light. Plaintiff claimed the defendant driver was intoxicated and he became combative with the police at the accident scene.Defendants admitted liability. The case went to the jury regarding the issue of actual and punitive damages only. The accident occurred at night; no adverse weather.

Editor's Note:
Plaintiff's attorney noted that defendants admitted liability to exclude evidence of intoxication. However, the court denied defendant's motion in limine regarding evidence of the driver's intoxication.
Damages/Injuries Alleged:
Lee Collins, III - severe fracture to leg, required external fixation and pins, residual pain; medical specials: about $25,000; wage loss: none; Lee Collins, Jr. - soft tissue neck and back; medical specials: unavailable; wage loss: none.
Verdict:
Returned October 21, 1999 for plaintiff Lee Collins, III $ 175,000 actual damages against Ross for personal injuries + $10,000,000 punitive damages.
Editor's Note:
Plaintiff's attorney noted that plaintiff Lee Collins, Jr. settled before trial for $30,000 actual damages for personal injuries & Lee Collins, III settled with Aetna for $163,000 actual damages during trial and before the closing arguments and he settled with State Farm for $ 46,000 actual damages during the jury deliberations and immediately before the verdict was rendered.

ST. LOUIS CITY - PREMISES LIABILITY

Type of Claim:
electrical explosion at substation burned painter; Plaintiff, about 40 years old at the time, alleged that he was employed as a painter with Utility Service & Maintenance ("Utility"), which is a company that contracts to paint electrical structures and transmission towers. Plaintiff claimed in October 1992 defendant Noranda Aluminum, Inc. (Noranda) hired Utility to paint structural steel at its Rectifier Substation in New Madrid, Missouri. Plaintiff began his painting duties on October 1, 1992 for a job that was to last three weeks. Noranda did not shut down its plant while painting was underway, but instead was supposed to advise Utility's workers which areas had been de-energized and in which areas it was safe to paint. Plaintiff claimed that defendant Troy Long was Noranda's supervisory employee in charge of coordinating the work with Utility and de-energizing the areas where plaintiff was required to paint. On October 6, 1992, plaintiff was painting a bay that had been designated by Noranda as safe to paint when an electrical explosion occurred, severely burning plaintiff. Plaintiff alleged that defendants negligently failed to properly inspect the area in which plaintiff was painting to determine the existence of a dangerous or hazardous electrical condition and defendants negligently failed to provide plaintiff with any insulating protective equipment, such as rubber blankets, or coverings that could be placed over the electrical wiring and the insulators located near the area in which plaintiff was painting. Plaintiff claimed defendants failed to warn or instruct him of the dangerous or hazardous electrical condition existing in the area in which he was painting and defendants failed to shut down the electricity going to the transformers and conductors in the area where he was painting.Defendants denied liability and contended that they did not control the work of the plaintiff. However, Defendants motion to dismiss for lack of subject matter jurisdiction based on lack of control and the claim that Plaintiff was their borrowed servant was denied.

Editor's Note:
Plaintiff's attorney noted that this is one of the few cases since the decision in Zuck v. Oppenheimer where a plaintiff, who is an employee of a contractor, is able to successfully recover damages against the landowner.
Damages/Injuries Alleged:
severe electrical burns over 50% of his total body surface, including head, neck, chest, abdomen, back, arms and hands, amputated fingers, specifically amputation of his right ring and little fingers, loss of both of his outer ears, eye injuries that required various eye surgeries for treatment of burn abrasions and conjunctivitis, possible future blindness in both eyes, severe disfigurement to burned areas, post traumatic stress disorder, head trauma resulting in impairment of functional brain ability; medical specials: about $850,000; wage loss: about $500,000.
SETTLEMENT:
Reached December 5, 1998 during mediation for plaintiff $ 4,300,000.

ST. LOUIS CITY - MALPRACTICE

Type of Claim:
medical malpractice, negligent surgery; plaintiff, about 36 years old at the time, alleged that she sought treatment from defendant Dr. Axelrod for cervical cancer. Plaintiff had radiation therapy before going to defendant. Plaintiff underwent pelvic exenteration surgery which involved removal of the uterus, bladder and lymph nodes in attempt to remove cancer. Plaintiff claimed that during the surgery, defendant cut the left external iliac artery which is a main artery of the left leg. Plaintiff contended that defendant repaired the artery but negligently failed to consult with a vascular surgeon to make the repair. The following day, plaintiff developed a blood clot due to inadequate circulation. Subsequently, a vascular surgeon, Dr. Robert Schwartz, was consulted and he performed a corrective surgery wherein he removed the clot, opened up the artery but this repair was not completely successful. Plaintiff continued to have insufficient circulation. On January 27, 1987, plaintiff underwent a femoral bypass procedure as well as a fasciotomy procedure that created a six inch open wound to promote healing. Plaintiff continued outpatient treatment and therapy for her leg through June, 1987. On June 29, 1987, she consulted a surgeon, Dr. John Caskill, who performed a leg amputation above the knee at Alton Memorial Hospital. Plaintiff contended defendant Axelrod, an employee of St. Louis University Hospital, was negligent in cutting the iliac artery, improperly repairing the cut and failing to consult a vascular surgeon.Defendant denied negligence and contended that a cut in the artery was a known risk of the procedure. Defendant claimed the cut was properly repaired. Defendant maintained that plaintiff was prone to developing blood clots because of radiation treatments. Further, defendant contended that if plaintiff had remained at St. Louis University Hospital, her leg may have been saved.

Damages Alleged:
left leg amputated above knee; medical specials: about $57,000 past + about $1,200,000 future; wage loss: about $429,000, plaintiff was unable to work outside of her home since the amputation and would require prostheses and/or a wheelchair for the rest of her life.
Verdict:
Returned September 15, 1995 for plaintiff $5,000,000 against both defendants (breakdown: $57,000 past economic damages; $1,500,000 past non economic damages; $280,000 future medical; $180,000 future economic; $2,983,000 future non economic).

ST. LOUIS CITY - PREMISES LIABILITY

Type of Claim:
man hit on railroad trestle, wrongful death; plaintiffs are the surviving wife and daughter of decedent, Earl Easter, about 49 years old at the time of death. Plaintiffs claimed Mr. Easter was performing work at his neighbor's farm near Arcadia in Iron County, Mo. and because of high water, he was unable to drive across a creek to access the property. Plaintiffs alleged he parked his car and walked along a railroad trestle to get across the swollen creek. After working on the farm during the day, Mr. Easter attempted to return across the trestle. Plaintiffs contended defendant was operating a single engine northbound, rounded a curve, entered about 600 feet of straight away and struck and killed Mr. Easter on the trestle. Plaintiffs claimed defendant's engine crew failed to react quickly enough and apply full braking in order to avoid striking decedent. Plaintiffs alleged there was sufficient distance for the train to stop if the crew had reacted properly. Plaintiff claimed defendant's crew saw Mr. Easter at least 600 feet from the point of impact because of the straight track and they could have stopped the single engine within about 300 feet. Plaintiff contended decedent had stepped off to the side of the trestle and was clinging to the side of the trestle when he was struck by a protruding step or he was pulled into the train by the force of it passing.Defendant denied negligence and contended a whistle was sounded as soon as Mr. Easter was sighted on the trestle. Further, defendant claimed its crew reacted promptly and exercised ordinary care but there was neither sufficient time nor distance to avoid the accident.

Verdict:
Returned January 27, 1995 for plaintiffs $1,500,000 with apportionment of fault 11% to decedent and 89% to defendant for a net verdict to plaintiffs of $1,335,000.

ST. LOUIS CITY - PREMISES LIABILITY

Type of Claim:
wrongful death, negligent security, employees murdered during robbery; plaintiff Louise Bass is the wife of decedent Kenneth Bass who was about 27 years old at the time. Plaintiffs Christopher and Maurice Bass are the minor children of Louise Bass, ages 7 and 5 years respectively. Plaintiffs contended Kenneth Bass was employed as a night janitor for Building Butlers, Inc. of St. Louis; he was cleaning and polishing the floor of the supermarket located at 4331 Natural Bridge Ave. when the robbery occurred on Sept. 4, 1987. Plaintiffs alleged National Supermarket failed to provide adequate security for the employees; store supervisors allowed one of the guards to go home before all employees had left the premises. Ten other employees were in the store when at least two men entered the store, ordered seven of the the employees to lay face down on the floor; three employees were not detected by the intruders. The assailants robbed the safe and then shot all seven people as they laid on the floor. Five people, including Bass died from their wounds. Subsequently, two men were arrested and convicted.Defendant denied negligence and contended that Bass was a statutory employee, therefore the court was without jurisdiction.

Verdict:
Returned Aug. 20, 1993, for plaintiffs $3,000,000.

ST. LOUIS CITY - F.E.L.A.

Type of Claim:
employee fell from ladder while making repairs; plaintiff, about 44 years old at the time, alleged on Aug. 26, 1987, he was working as a welder for defendant and was making repairs to a rail car in the DeSoto shop. Plaintiff claimed he was on a portable ladder, attempting to replace hatch covers and he fell while transferring from one ladder to another. Plaintiff fell about six feet to the floor and landed on his head. Plaintiff claimed defendant was negligent in failing to maintain a safe workplace. Plaintiff's attorney noted plaintiff had a history of blackouts and possible seizures; he had undergone three prior hospitalizations for syncope or blackouts. In June, 1987, plaintiff returned to work from a job furlough. At that time, he was examined by the company doctor, Dr. Donnell, and with the consent of the Chief Medical Officer in Omaha, Dr. Dennis Richling, was returned to work full duty. At the time of return, Dr. Richling and the railroad were made aware of plaintiff's history of syncope; plaintiff claimed in violation of their own medical exam rule, they returned plaintiff to work at heights.Defendant denied negligence, contended there was no knowledge of any defective condition in the workplace before the accident. Rather, plaintiff's injury was a result of his own carelessness.

Injuries Alleged:
laceration on forehead, resulting scar, closed head injury, continuing headaches, dizziness, memory and reading problems; medical specials: $3,000; wage loss: about $100,000 past and about $400,000 $600,000 future wage loss.
Verdict:
Returned Feb. 13, 1992, for plaintiff $1,100,000.

ST. LOUIS CITY - PREMISES LIABILITY

Type of Claim:
wrongful death, minor fell from hay wagon; decedent, about 8 years old at the time of death, had attended Camp David in July, 1985, that was located in St. Francois County and was operated by a church. St. John's Temple actively solicited children to attend the camp. Plaintiff claimed as her son was riding in the hay wagon that was pulled by a Jeep, he fell out of the wagon, slipped under it and it rolled over him. Plaintiff claimed that there was inadequate supervision and the wagon was driven at an excessive speed.Co defendant, St. John's Temple, settled before trial for $1,000. Defendant Camp David disputed whether St. John's Temple actively solicited children to attend the camp. Defendant Camp David contended there was adequate supervision on the hay wagon in that several counselors were present. Also, defendant alleged the wagon was not driven at an excessive speed; the child's fall was due to some action on his part.

Verdict:
Returned May 23, 1991, for plaintiff $1,000,000.

ST. LOUIS CITY - F.E.L.A.

Type of Claim:
a track jack tripped during maintenance work; plaintiff, about 30 to 33 years old at the time, alleged he and a co worker were operating a new Simplex, 15 ton track jack when it tripped, or disengaged; plaintiff was thrown with great force into the co worker and landed on the ground. Plaintiff claimed the jack was defective in that the teeth on the lifting pawl were not properly machined and were unusually worn. The jack was one of several brand new Simplex, 15 ton jacks provided to the workers; there was a dispute as to which jack plaintiff had been using. In order to operate the jack, two men had to stand side by side and put all their weight against a six foot bar so that the track could be lifted and aligned.Defendant contended plaintiff identified two different jacks, both of the same model; one was identified right after the accident and one was identified several days later. Defendant claimed the jack identified by plaintiff several days after the accident was not defective; that the first jack was put back into service without further incident. Defendant further contended plaintiff was contributorily negligent in not inspecting the jack. Defendant alleged plaintiff's injuries were caused by a prior auto accident, that had occurred about two or three years earlier. Also, defendant claimed plaintiff could return to various types of employment; defendant's vocational rehabilitation expert testified there were several jobs that plaintiff should be able to do, one with comparable wages and the rest were not with comparable wages. The accident occurred in Cape Girardeau; plaintiff was from Kennett, Missouri. There were no adverse weather conditions present at the time; the accident occurred during daylight.

Injuries Alleged:
two herniated lumbar discs, two separate operations performed; medical specials: paid by the defendant; wage loss: $86,000 to date of trial plus $600,000 to $700,000 projected future loss.
Verdict:
Returned Nov. 21, 1988, for plaintiff $1,950,000.

ST. LOUIS CITY - Auto

Type of Claim:
ped/auto, death to 18 yr. old son, intoxicated driver; plaintiffs alleged defendant McIntosh worked for the Jefferson Arms Apartments as a maintenance man, he had attended a party on the premises and was served too much liquor. Plaintiff claimed the Jefferson Arms Apartments had a license to serve liquor. While taking a fellow employee home, McIntosh struck decedent, Richard McClure who was about 18 years old at the time. Decedent was struck near the Cole Street entrance to Highway 70 while he was walking on the pedestrian walkway. Plaintiffs claim against Jefferson Arms Apartments involved the common law dram shop theory.Defendant Jefferson Arms Apartments alleged defendant McIntosh had attended a party sponsored by the employees, and that he over served liquor to himself. There were no adverse weather conditions present at the time; the accident occurred at about midnight. Defendant's attorney noted McIntosh had left the scene of the accident; police traced the vehicle and located him about two weeks later.

Verdict:
Returned Nov. 5, 1987, for plaintiffs $1,000,000 against both defendants.

CERVANTES & ASSOCIATES
Attorneys at Law

1007 Olive Street, Fourth Floor
St. Louis, Missouri 63101 (Independent City)
314-621-6558 phone
314-621-6705 fax

St. Peters Office
4141 Mexico Road
St. Peters, MO 63376
(636) 352-1458 phone