Truck driver unloading hay falls off ladder as he climbs to top of load. $3.5M. Los Angeles County.
A trucker has to untie his load of hay before defendant's workers can unload it. Facts in dispute.
- Case Name: Bartolo Flores vs. Anderson Hay & Grain Co., Inc.; Armando Doe; and Does 1 through 100, inclusive
- Court and Case Number: Los Angeles Superior Court / BC596919
- Date of Verdict or Judgment: Tuesday, August 21, 2018
- Date Action was Filed: Tuesday, October 06, 2015
- Type of Case: Premises Liability, Workplace Accident, Misc.
- Judge or Arbitrator(s): Hon. Michael P. Vicencia
Plaintiffs: Bartolo Flores, 49, truck driver.
Defendants: Anderson Hay & Grain
- Type of Result: Jury Verdict
- Gross Verdict or Award: $3,500,000
- Settlement Amount: $3,400,000
- Trial or Arbitration Time: 6 days.
- Jury Deliberation Time: 39 minutes. (Defense counsel reports 2 1/2 hours.)
- Post Trial Motions & Post-Verdict Settlements: After post-trial motions were denied, plaintiff accepted $3,400,000 in full non-confidential settlement.
Attorney for the Plaintiff:
McElfish Law Firm by Raymond D. McElfish, West Hollywood.
California Attorney Group by Bob Khakshooy, Beverly Hills.
Attorney for the Defendant:
Acker & Whipple by Jerri Johnson, Stephen Acker and Arang Chun, Los Angeles.
Plaintiff’s Medical Expert(s):
Fardad Mobin, M.D.; neurosurgery, Beverly Hills.
Defendant called plaintiff’s treating orthopedic surgeon, Shaun Chaundran, M.D.
Plaintiff's Technical Expert(s):
Larry Miller, trucking, La Verne.
Defendant's Technical Expert(s):
Carl Beels, human factors, Escondido.
Facts and Background
Facts and Background:
On or about July 9, 2014, plaintiff Bartolo Flores was delivering a load of alfalfa hay to defendant Anderson Hay & Grain. Plaintiff pulled his flatbed truck into the defendant’s facility for unloading. As required by the defendant, plaintiff had to untie the load of hay from the top of the load and afterwards an Anderson employee would unload the delivery. The proper method of untying the load is to be lifted to the top by either a man basket or a safety cage. Instead, plaintiff was given a ladder to use. As plaintiff climbed the ladder and almost reached the top, the ladder slipped and plaintiff fell. Plaintiff had been making deliveries to the location several times a week for five years and was well familiar with the process.
That the defendant negligently failed to provide him a safety cage as is required by the defendant’s policies and instead gave him a 13-15-foot high extension ladder to unhook his load of hay on the top of his truck.
That when plaintiff entered defendant’s facility, he was greeted by defendant’s forklift driver who previously lifted him up on his forks, but now insisted he needed to use a man basket or a safety cage attached to the forklift. The forklift driver testified he would go locate one but returned some time later stating he could not find one and that plaintiff needed to use a ladder instead because trucks were starting to back up waiting to unload their trucks. (The forklift driver testified at trial that he never saw plaintiff that morning before he had fallen and was lying on the ground; he had no idea from where plaintiff got the ladder.) A current co-employee supervisor of defendant testified that he was aware that the forklift driver had in fact seen plaintiff and talked to him prior to the accident, contrary to the forklift driver’s testimony. The co-employee also testified that due to a recent unrelated accident, they were required to use safety cages or man lifts for any unloading and that the ladder was no longer acceptable when this accident occurred.
A former employee manager testified off subpoena without any objection from defense that the defendant formerly allowed ladders to be used but as a result of this accident, safety cages were required and that the defendant’s policy was changed as a result.
Plaintiff testified that as he was climbing the ladder, the forklift driver initially attempted to hold the ladder but left when plaintiff got near the top, causing it to slip and fall to the ground approximately 15-18 feet. As a result of the fall plaintiff was removed by ambulance and hospitalized for knee injuries and knee surgery and later was treated for lower back injuries and a laminectomy in his lumbar spine. Thereafter, plaintiff returned to work as a truck driver and was out driving during most of the trial including during the jury deliberations.
Plaintiff’s technical expert Larry Miller testified that safety cages should be used when unloading trucks and that using ladders for this purpose was an unsafe practice as hay on the floor caused the floor to be slippery and the ladder unstable.
That plaintiff took it upon himself to wander around defendant’s plant to retrieve the ladder and used it in violation of defendant’s safety policies. (Plaintiff countered that the closet in which ladders and tools were kept were locked, and plaintiff could not have accessed the ladders even if he wanted to.) Defendant’s technical expert, Carl Beels, testified that the ladder was a safe and acceptable practice but plaintiff should not have taken it upon himself to wander around defendant’s plant unescorted to locate a ladder, he should have waited by his truck.
During the four months that plaintiff treated with Dr. Chandran for his knee, he never once mentioned back pain to Dr. Chandran. Dr. Chandran testified that had plaintiff mentioned spinal pain, he would have been referred, through workers’ compensation, to a spinal specialist. Plaintiff did not mention back pain or treat with a spinal specialist until he retained an attorney and the attorney sent him to a different doctor, on a lien basis, outside workers’ compensation.
Injuries and Other Damages
Physical Injuries claimed by Plaintiff:
For the first several months, plaintiff received treatment for a knee injury, through workers’ comp. He'd had previous knee surgeries as well. Plaintiff asserted that he suffered a lumbar herniation which required a laminectomy. Plaintiff also suffered an aggravation of a prior meniscal tear that required previous surgery and which necessitated new surgery shortly after the subject accident. Dr. Mobin testified that the knee surgery and the back surgery were related to the accident and that plaintiff would need future conservative care over his life expectancy in the amount of approximately $87,000. Plaintiff claimed that the knee and back injury caused him daily pain, made it harder for him to work and care for his daughter and caused him to change his lifestyle and gain weight.
Per defense counsel: But his license showed the same weight, he was driving full time just like before, he signed a medical card exam saying “no back issues”, and his daughter was 23 at the time.
Demands and Offers
- Plaintiff §998 Demand: $1,000,000 policy limit demand. (Defendant did not disclose their $5,000,000 excess policy in discovery and not until after the verdict.) Per defense counsel: All policies were disclosed in discovery. Plaintiff’s demand before trial was $650,000, reduced to $300,000 right before trial.
- Defendant §998 Offer: $200,000
- Defendant Final Offer before Trial: $200,000
- Defendant Offer during Trial: $225,000
The case turned on the dishonesty of the defendant’s employee forklift driver, who the jury believed lied about giving the plaintiff the ladder and seeing him that morning. The jury also did not like the fact that the defense attorneys attempted to impeach the plaintiff with a commercial DOT driving application where he appeared to deny back injury after his surgery. The jury liked and embraced the idea that plaintiff had returned to work and that now his job as a truck driver was going to be even harder due to the pain and injuries from this accident. The jury rejected the notion that plaintiff was permitted to wander around the plant looking for a ladder and even if he did, it was defendant’s responsibility to make sure he had an escort.
The jury awarded more damages than even was demanded of them in final argument to make sure plaintiff had enough money to compensate him for the rest of his life considering inflationary measures and discount rates. Following the trial, defendant sent an investigator around to the jurors' homes and places of work to obtain declarations that the verdict was improperly influenced by outside factors and personal experiences in order to provide a basis for a new trial.
Defendant’s investigators told jurors that they needed the declarations for a post-trial survey. Based on a juror declaration, a motion for new trial was filed by defendants, and shortly after denied by Judge Michael Vicencia. One day before the hearing for new trial, both plaintiff and defendants agreed to mediate the case with Judge Daniel Pratt with ADR Services without resolution. The following morning Judge Vicencia denied the defendant's motion for new trial and for judgment notwithstanding the verdict.
Defendant agreed to pay the negotiated amount of $3,400,000 with a waiver of costs, interest and appeal as a non-confidential settlement.