Truck driver injured while assisting in unloading pallet: Violation of industry practices: Knee injuries: Torn rotator cuff: Settlement

Law Reporter, Oct 2003

Valdivia v. HomeGrocer.com, Cal., San Diego County Super. Ct., No. GIC 764739, Apr. 7, 2003.

Valdivia, 44, was a truck driver. Valdivia delivered a load of four pallets. Employees at the delivery site had difficulty unloading one of the pallets. They allegedly asked Valdivia to place his weight on the pallet in order to balance the weight of the load, and he did so. The pallet broke, pinning Valdivia against a wall.

Valdivia suffered a left wrist fracture, a right leg laceration, internal injuries to both knees, and a torn left rotator cuff. Workers' compensation paid about $240,100 in expenses. Valdivia, who earned $2,800 per month as a truck driver, was unable to return to that occupation. His estimated lost earnings totaled $450,000.

Valdivia and his wife sued the owners of the delivery site and the company employing the workers who unloaded the truck at the site. Suit alleged defendants violated industry practices in attempting to mechanically unload an unbalanced pallet and in requesting the assistance of a delivery driver in unloading a pallet. The employer brought suit against the pallet manufacturer, claiming that the pallet was improperly manufactured. Defendants argued that Valdivia had unjustifiably placed himself in harm's way.

The parties settled in mediation before trial for $520,000. The company employing the unloading workers paid $500,000 and the pallet manufacturer paid $20,000. The workers' compensation carrier accepted $130,000 of the settlement proceeds in satisfaction of its lien.

Plaintiffs' experts were Daniel Capen, orthopedic surgery, Downey, Cal.; Peter Ruchinsky, construction, San Diego, Cal.; Richard Anderson, rehabilitation/life care planning, Westminster, Cal.; and Cathy Graves and Wayne Lancaster, economics, Fullerton, Cal.

Defendants' experts included V. Paul Herbert, accident reconstruction, Quincy, Cal.; Eugene Vander Pol II, safety/biomechanics, La Costa, Cal.; Bonnie SinClaire, vocational rehabilitation, San Diego, Cal.; Marshall S. White, forest products, Blacksburg, Va.; and J. Terrence Grisim, safety/industry practices, Elmhurst, Ill.

Plaintiff's Counsel

*Jeffrey A. Milman, Newport Beach, Cal.