Fall caused by employee's practical joke: Retention of unfit employee: Assault and battery: Shoulder, back, neck injuries: Settlement

Law Reporter, Dec 2001

Johnson v. Albertson's, Inc., Cal., Alameda County Super. Ct., No. 823130-9, July 31,2001.

Johnson, 32, was delivering ice cream to a grocery store. While he was putting the ice cream on racks in his delivery truck, the store's receiving clerk lowered the lift used to bring ice cream out of the truck. As Johnson was taking the racks from the truck, he stepped out to where the lift should have been and fell about four-and-a-half feet to the ground. Johnson suffered a torn rotator cuff, requiring surgery, and connective tissue injuries to his neck and back. After he returned to work, Johnson tore the rotator cuff again, necessitating another surgery. His medical bills totaled about $27,000 and were paid by his employer. A delivery driver, Johnson had earned about $55,000 annually but is unable to return to his previous job. His past and future wage loss totals about $350,000.

Johnson sued the store and the receiving clerk. Suit against the store alleged retention of an unfit employee. Plaintiff claimed the store knew that the clerk was capable of this behavior because he had a substantial history of dangerous practical jokes. Plaintiff argued that despite this knowledge, the store made no attempt to prevent foreseeable injuries to him.

Suit against the receiving clerk alleged assault and battery. Plaintiff claimed the clerk had lowered the lift knowing that plaintiff was inside the truck and that there was a likelihood he would fall.

The parties settled at mediation for $850,000, including a workers' compensation lien. The parties stipulated that the entire amount was for plaintiff's injuries.

Plaintiff's experts were Thomas Braun, mechanical engineering, Livermore, Cal.; John Merson, orthopedic surgery, Concord, Cal.; William Hoddick, radiology, Moraga, Cal.; and Carol Hyland, vocational rehabilitation, and Joanna Moss, economics, both of Berkeley, Cal.

Defendants' expert witnesses in this case were Thomas Sampson, orthopedic surgery, San Francisco, Cal.; and Timothy Sells, vocational rehabilitation, and Kirk Blackerby, economics, both of Sacramento, Cal.

Plaintiff's Counsel

*Steven L. Derby, Walnut Creek, Cal.