Cargo falls on worker: Improper bundling: Inadequate forklift size: Quadriplegia: Structured settlement

Law Reporter, May 1999

Kitchnefsky v. National Rent-A-Fence of Am., Inc., U.S. Dist. Ct., D.N.J., No. 97-1852 (SBB), Dec. 1,1998.

Kitchnefsky, 27, was struck when a stack of chain link fence panels fell while they were being unloaded by forklift from a truck. He suffered fractures at C5-C7, resulting in quadriplegia. A laborer who had earned about $17 per hour, he is unable to return to work.

Kitchnefsky sued the fence company, alleging that it had failed to (1) strap or bundle the panels prior to delivery and (2) warn the forklift operator or stop the delivery based on concerns that the forklifts used for unloading the cargo were too small. Plaintiff claimed that the fence company, in its own yard, had used a forklift three feet longer than the one used to unload the panels here.

Defendants contended that ( 1 ) the accident was caused by the negligence of the forklift operator, who was not their employee, and (2) plaintiff had assumed the risk of harm by placing himself near the panels.

Defendants joined plaintiff's employer as a third party defendant, alleging that the delivery ticket included an indemnification provision. The employer argued that the indemnification language on the ticket was invalid and unenforceable.

The parties structured a settlement with a present cash value of about $6.25 million, including about $2.3 million in cash and a $200,000 educational fund for plaintiff's son. The settlement also includes waiver of a $1.2 million workers' compensation lien. The fence company's insurer contributed about $4.9 million, the employer's insurer paid about $800,000, and the workers comp carrier contributed $500,000 and waived its subrogation lien of about $1.3 million.

Plaintiff's experts included Lawrence Deutsch, neurosurgery, Camden, N.J.; Kevin O'Connor, physiatry, Dover, N.J.; Ricardo A. Nieves, physiatry, Scranton, Pa.; Lorraine Buchanan, life care, Blue Bell, Pa.; and Robert Wolf, economics, Cherry Hill, N.J.

Plaintiff's Counsel:

*Richard A. Russo, Wilkes-Barre, Pa. Warren W. Faulk, Westmont, N.J.

[Documents in this case are available through the Court Documents section in the back section of this issue, courtesy of Mr. Russo.]