'Plaintiff's paradise' a factor in Weber bench trial

By Steve Gonzalez | Jun 20, 2006

Paul Johnson

In his first bench trial, Madison County Circuit Judge Don Weber sympathized with a defendant who chose to settle a case rather than risk trial in "plaintiff's paradise."

"The court must...consider the judicial climate of Madison County with respect to plaintfif's verdicts," Weber wrote in an order that more evenly distributed liability in a concrete worker's personal injury suit.

Weber ordered Riverbend Contractors to pay $292,910.97 to Kienstra Inc., which had paid $887,609 to claimant Fred Clark in settlement of his 2003 Madison County lawsuit.

Dan Murphy, Kienstra general manager, testified that, "Madison County in this type of case is very pro-plaintiff."

Murphy told Weber that the county's reputation as a "plaintiff's paradise" was a factor in his decision to settle the case with Clark.

"This court cannot disagree with Kienstra's concerns or their ultimate conclusion that they were forced to settle this case rather than risk a trial," Weber wrote in his order June 14.

The bench trial began June 12 and lasted only two days.

"As discouraging as it is, the perception that the Madison County Judicial System is unfair becomes a reality in cases such as this," Weber wrote. "The court finds that Kienstra had a reasonable anticipation of liability when it settled the underlying case with Fred Clark."

Clark claimed he was injured when a Kienstra concrete truck backed into the form he and his chute man were standing in, according to his lawsuit. He jumped three feet from the form with a 30 pound vibrator around his neck and landed awkwardly, Clark claimed.

Clark, an employee of Riverbend Contractors, had degenerative disk disease at the time of the accident and sought medical attention several days after the accident.

Richard Meyers, vice president of Riverbend at the time of the accident, testified that the chute man is in charge of when and where to pour the concrete, where to park the truck and the direction of the approach of the truck.

He testified that backing up the concrete truck is dangerous and the chute on the truck should be away from workers and forms and also testified that the chute man should not be on be on the forms while the concrete is pouring because the operator has to pay attention.

Meyers said if the chute man is on the form, it's "an accident waiting to happen" because he must keep his footing, handle the chute and give the driver hand signals.

Clark testified that the chute man could have had the driver approach in a forward direction, but instructed the driver to back towards the pour site instead, and also testified that the chute man was not the best qualified.

The chute man testified that he could have moved the chute away each time a pour was made, but it took too much time and the contractor did not want him to do it that way. He also testified that workers learn to get out of the way and that speed is needed to do the job.

He also testified that he believed Clark was "sue happy" and other workers would not have filed a suit over the accident.

Testifying by deposition, Clark's treating surgeon, Dr. Kennedy said that the fall aggravated a pre-existing back condition and resulted in a herniated disk which was surgically repaired.

Also testifying by deposition, Dr. Coyle claims he reviewed Clark's medical records and concluded that there was no herniated disk. Coyle also stated it was his opinion that Clark was not injured by his awkward jump, but did state that Kienstra had a tough case to prove or defend. He also said Clark could have aggravated his condition by simply sneezing or coughing.

Dr. Harding also testified by deposition claiming Clark's back problems could have been aggravated by a cough or sneeze but conceded it also could have been caused by the jump.

James England, a rehabilitation specialist, testified that Clark's lost wages would amount to about 50 percent over his working lifetime which would be about 17-20 years.

"Riverbend claims that Kienstra should not have settled the claim with Clark," Weber also wrote in his order.

"Riverbend claims Kienstra had no reasonable anticipation of liability because Clark could not prove Kienstra drove the truck or that Clark was in fact injured."

"However, the evidence shows that Kienstra was the only concrete supplier on the job and that two creditable witnesses saw the accident," Weber wrote.

Weber also pointed out that Clark immediately complained to the chute man about his back injury.

Weber stated that even though Kienstra produced two doctors who claim Clark could not have sustained the injuries complained of, that should be balanced with testimony of Clark's treating physicians who actually saw and treated his herniated disk.

"If coughing or sneezing could have aggravated Mr. Clark's disc disease, surely an awkward 3 foot jump from a concrete form with a 30 pound vibrator around one's neck could have aggravated the condition," Weber wrote.

"The court also finds that Riverbend's own active negligence contributed to the accident," Weber wrote.

He found that it was the duty of the driver and the chute man to see that the pour was done in a safe manner and concluded the hand signals given were ambiguous and both the driver and chute man are at fault for that.

Weber also ruled that the chute man position on the concrete form was in violation of safety rules and contributed to the truck hitting the form.

Clark was represented by Greg Becker of Granite City.

Kienstra was represented by Paul Johnson of the Burroughs Firm. Riverbend was represented by Bruce Warren of Champaign.

03 L 1520

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