Brain Injury Case Settled for $2.1M

FACTS: Plaintiff, a 47 year old woman, was injured when an unbolted post from a cyclone fence fell and struck her in the head while she was doing a closing property inspection in the course and scope of her employment with CBRE Property Management on May 2, 2011.

PLAINTIFF’S CONTENTIONS: On May 2, 2011, at 4 p.m., plaintiff met one of her supervisors, Virginia Unruh at the subject property. [REDACTED], JIT’s owner, and [REDACTED], general manager, arrived shortly after. Between the time that the JIT employees left the building on Saturday night and the time of the inspection on Monday afternoon, no one had access to the building except for JIT employees. In one corner of the warehouse, the tenant that occupied the space prior to JIT had constructed a chainlink fence enclosure. Plaintiff contended there were two vending machines inside this enclosure. One could enter the enclosure inside the warehouse through the gate on the side of the cyclone fence. There was also an exterior door, through which one could enter from outside the building.

As the inspection proceeded into the warehouse, plaintiff was making notes of things that needed to be repaired. She was walking ahead of JIT’s owner and Unruh. Plaintiff and Unruh testified that JIT’s general

manager was not part of the inspection and was not with them as the inspection proceeded into the warehouse.

As plaintiff approached the fenced enclosure, she went to open what she thought was a gate to the enclosure to make sure it was working properly. It turns out that what she tried to pull on was an anchor post that had originally been adjacent to the gate to the enclosure, and that post had been unbolted from the concrete floor, moved approximately 120 degrees, and left standing in an upright position. It appeared to plaintiff and Unruh that it was actually a gate and there was no way to tell it was not bolted to the ground. When plaintiff tried to open what she thought was a gate, the unbolted portion of the fence fell toward her and the post struck her in the head. While she was dazed and stunned, she thought she was okay and, despite Unruh’s request that she drive plaintiff to the hospital or home, plaintiff drove home. The inspection had nearly been completed and plaintiff does not remember the remainder of the inspection. Unruh testified that JIT’s owner gave her the keys to the premises at the end of the inspection. Plaintiff contended that no one but JIT employees had access to the warehouse from the time that they cleaned up on April 30, 2011, to the time of the inspection.

Plaintiff contended the vending machines were too wide for the cyclone fence door or the exterior door, which entered into the fenced enclosure. Plaintiff claimed that it was JIT employees that unbolted the post in order to remove the vending machines and just did not bother to reattach the post. Plaintiff argued that they created a dangerous condition, particularly in view of the fact that JIT’s owner and JIT’s general manager knew that there would be a final inspection the following Monday with CBRE employees conducting the inspection.

DEFENDANTS’ CONTENTIONS: JIT’s general manager testified he did not recall who opened the building. JIT’s owner testified that he had driven to the CBRE offices that Monday morning and turned in the keys, and that one of the CBRE women opened the building. JIT’s owner and JIT’s general manager testified that they had been moved to their new office and the vending machines were no longer at the property. JIT’s general manager testified that he was with plaintiff and Unruh as the inspection proceeded into the warehouse.

INJURIES: Plaintiff claimed she suffered a life altering traumatic brain injury. Although plaintiff does not recall doing so, she drove herself home after the incident. Later that day, she claimed she experienced dizziness, nausea and vomiting and neck pain, which prompted her to go to the ER at Good Samaritan Hospital where a CT scan of her head was read as normal. Plaintiff attempted to return to work at some point but found she could not tolerate the workplace because of her inability to concentrate and focus and because of headaches and neck pain, and was therefore allowed to work at home four hours per day. In August 2011, her employer had to replace her. Plaintiff claimed she could not drive after the brain injury, which was a significant component of her job. Plaintiff claimed that she had no problem handling the multifaceted aspects of her job for the 20 years prior to her and the stunning lack of regulation of her brain injury, but now she was overwhelmed by it all. As a result of her traumatic brain injury, plaintiff claimed and continues to claim memory loss, inability to concentrate and focus, impaired speech, headaches, photophobia, imbalance, and sensitivity to noise. She claimed she no longer drives and had to move back in wither parents due to her losing her employment. She also claimed depression. The physicians who examined, evaluated and treated plaintiff following the incident uniformly concluded that she was totally disabled from work.

SPECIALS IN EVIDENCE: MEDS: $67,000 (workers’ compensation) Future MEDS: $700,000 (disputed)

LOE: Plaintiff claimed approximately $1.6 million in wage loss.

RESULT: The case settled for $2.1 million, with $250,000 being contributed by the compensation carrier.