Worker/Workplace Negligence
Teen: I fell using ladder-bridge connecting pizzeria's storage lofts
| (P) $20,000.00 | |
| Workplace - Workplace Safety, Slips, Trips & Falls - Fall from Height | |
| Karsten Bjerge v. Dominicks Pizza Inc. d/b/a Luca's Pizza, Natick NJ Vineland Realty Corp. and Cumberland Mall Associates, No. CUM-L-828-08 | |
| Cumberland County Superior Court, NJ | |
| Robert G. Malestein |
|
| 11-23-2012 |
- Randy P. Catalano; Audubon, NJ, for Karsten Bjerge
- John Catalano M.D.; Orthopedic Surgery; Vineland, NJ called by: Randy Catalano
- None Reported; null, null, for Natick NJ Vineland Realty Corporation, Cumberland Mall Associates
- Stephen A. Rudolph; Rudolph & Kayal; Manasquan, NJ, for Dominicks Pizza Inc.
- None
- Travelers for Luca's Pizza
On Sept. 5, 2006, plaintiff Karsten Bjerge, 16, was working at Luca's Pizza in the Cumberland Mall in Vineland when he reportedly sustained a fracture and dislocation of one of his ankles when he fell eight feet from a storage loft located in the rear of the pizzeria.
Karsten sued his employer following the accident. (Since he was a minor at the time of the accident, Karsten had the statutory option to sue his employer in the local court's law division under general negligence principles, as opposed to the harsher "intentional wrong" standard. In exchange for suing his employer under a general negligence standard, Karsten had to waive his right to a permanency award in workers' compensation court.)
Karsten's lawsuit also named as defendants the apparent owner of the mall that leased the premises to Karsten's employer, and an entity believed to be involved in management of the property. The mall-ownership defendant achieved summary-judgment dismissal approximately two years prior to trial; the property-management defendant was dropped from the case before issue was joined.
On the day of the accident, Karsten claimed, he was asked by one of the pizzeria's managers to retrieve toilet paper from the back storage loft, where bulk paper items were stored. The pizzeria had two storage lofts in the rear of the restaurant, each positioned roughly eight feet off the ground. The lofts were about five feet away from each other.
On the day of the accident, according to Karsten, there was an extension ladder lying horizontally across the span that separated both storage lofts, with the ladder serving as a bridge between the two storage lofts. The ladder was not secured or fastened in any fashion, he claimed. According to Karsten, the pizzeria's manager had told him that if he was going walk across this ladder/bridge to go from one storage loft to the other, to be very careful.
The extension ladder serving as a bridge was a ladder that had been left behind by an electrical contractor, who had been working at Luca's Pizza in the weeks before the accident. Luca's Pizza apparently did not own the ladder and did not position the ladder across both storage lofts. To get up into either loft to retrieve paper supplies, employees reportedly would have to use an eight-foot A-frame ladder. After reaching the top of the A-frame ladder, the employee would have to climb up onto the storage loft. At that point, if an employee wanted to go from one loft to the other, he or she would have to walk across the horizontal, unsecured extension ladder, for a distance of about five feet, in order to get to the other loft.
At trial, Karsten testified that immediately prior to his accident, he went up the A-frame ladder and accessed the left-sided storage loft. While he was up in the loft, he claimed, a co-worker entered the rear of the restaurant and took the A-frame ladder away so that he (the co-worker) could go up to the right-sided loft to retrieve paper towels. Karsten claimed he asked his co-worker to put the A-frame ladder back so that he could get down. However, when the co-worker came back down from the ladder, the co-worker just left the rear of the restaurant without returning the ladder to underneath where Karsten was located, Karsten claimed.
Karsten alleged that he was stranded on top of the loft with no means of getting down. He claimed he began yelling for someone to come into the rear of the pizzeria to help him. When no one came, he decided he would try to walk across the horizontal extension ladder so he could get to the other loft. Karsten claimed he had never tried to walk across the horizontal ladder before the day of the accident. When he stepped on the ladder, the ladder moved or tipped and he immediately fell eight feet and landed on the tiled floor below, he claimed.
Karsten's attorney argued that the pizzeria's use of an A-frame ladder to climb up eight feet into a loft constituted a dangerous mode of operation, and that the business should have removed the horizontal "bridge" ladder prior to the day of accident. It was further argued that having young employees use an A-frame ladder to climb up and down to retrieve bulk items from a storage loft eight feet high was inherently dangerous.
Karsten's co-worker denied moving the A-frame ladder and denied leaving Karsten stranded on top of the loft. The pizzeria's manager denied telling Karsten he was permitted to cross over from one loft to the other using the horizontal ladder.
The defense contended that Karsten voluntarily jumped from the loft because he had been engaging in horse-play and did not want to come back down using the A-frame ladder. It was argued that Karsten had been solely negligent with respect to the accident, because he should have simply waited for another employee to come into the back of the pizzeria after finding himself stranded. The defense also pointed out that Karsten had a cell phone on him while he was up in the loft and could have called the pizzeria, his girlfriend or his mother to get help.
Following a non-binding arbitration, Karsten was awarded $400,000 in damages; this result was rejected by the pizzeria, which filed for a trial de novo.
Karsten sustained an ankle fracture and dislocation during his fall. He underwent open reduction internal fixation surgery, involving implantation of hardware, plates and screws. He wore a cast and brace, with crutches, for about six months.
At the time of the accident Karsten was just starting his junior year in high school and he reportedly had to be home-schooled during his junior year as a result of his injuries. Karsten had played on his high school's football team during his freshman and sophomore years, but never returned to the football team after injuring his leg.
Karsten's orthopedic surgeon testified that the fracture and the continuing range-of-motion limitations are permanent in nature. The expert also testified that Karsten already has signs of early arthritis in his ankle. The plate and screws were still in Karsten's ankle at the time of trial, and his six-inch scar on his ankle from the ORIF was displayed to the jury.
Karsten testified that his ankle still causes him great pain and suffering with routine activities. His attorney argued that Karsten faces 59 years of pain and suffering under the relevant life-expectancy tables.
Defense counsel did not call to the stand at trial a previously retained expert in orthopedic surgery.
The jury returned a liability verdict in which 50 percent negligence was attributed to the pizzeria and 50 percent, to Karsten.
The jury had returned a gross damages award of $20,000, which was reduced to $10,000 pursuant to the comparative-fault finding.
This report is based on information that was provided by defense counsel for the pizzeria. Plaintiff's counsel did not respond to the reporter's phone calls. VerdictSearch was not able to solicit feedback from listed counsel of record for the mall-ownership defendant; the remaining defendant was not asked to contribute.
