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Case of the Month June 2009

Billboard Worker Receives $1.8M for Electrocution, Fall

Binsfeld v. Conrad

Type of Case:
Labor & Employment - Safety & Health
Labor & Employment - Work Place Injury
Labor & Employment - Workers Compensation
Premises Liability - Electrocution Liability
Premises Liability - Fall from Elevation
Products Liability - Other

Specific Liability:
Negligent construction and maintenance of 40' high billboard resulted in worker electrocution and fall

General Injury:
Electrical burns, amputation of toes on right foot, orthopedic injuries, cognitive problems, PTSD, depression, past and future medical expenses, past and future lost income, loss of consortium

Jurisdiction:
State: Wisconsin
Court: Circuit Court of Wisconsin, Eighth Judicial District, Brown County

Related Court Documents:
Plaintiffs' amended complaint: 2001 WL 34882866
Defendant Conrad's answer: 2001 WL 36123261
Defendant Regent's answer: 2001 WL 36175503
Plaintiffs' trial brief: 2008 WL 5497730
Defendant Mortensen's trial brief: 2008 WL 5497729
Verdict form: 2008 WL 5499794

Case Name:
Donald R. Binsfeld and Cynthia M. Binsfeld, Plaintiffs, and Regent Insurance Company, Involuntary Plaintiff v. Donald S. Conrad, ABC Insurance Company, John P. Mortensen and Anthony F. Mortensen d/b/a Mortensen Properties and JKL Insurance Company

Docket/File Number:
2001CV988

Settlement:
Plaintiffs, $1,800,000.00

Settlement Date:
Aug. 7, 2008

Judge:
Kendall M. Kelley

Attorneys:
Plaintiffs: George Burnett, Liebmann, Conway, Olejniczak & Jerry, Green Bay, Wis. Involuntary plaintiff: Michael P. Crooks, Patricia J. Epstein, Laura M. Lyons, Anthony D. Conlin and Werner E. Scherr, Peterson, Johnson & Murray, Madison, Wis.
Defendant (Conrad): Sandra L. Hupfer, Stellpflug, Janssen, Hammer, Kirschling & Bartels, De Pere, Wis.
Defendants (Mortensen): Peter J. Hickey, Lawrence G. Vesely, Everson, Whitney, Everson & Brehm, Green Bay, Wis.

Experts:
Plaintiffs: Francis W. Biehl, PE, CSP, Biehl Engineering, Inc., Menominee Falls, Wis.; Norbert L. Lovata, PhD, structural building inspector. Madison, Wis.
Defendants: David A. Rudig, PE, structural engineer, Menomonee Falls, Wis.

Trial Type:
Settlement

Breakdown of Award:
$35,000.00 to plaintiff Cindy Binsfeld from defendants Mortensen
$17,500.00 to plaintiff Cindy Binsfeld's attorneys for fees from defendants Mortensen
$376,240.10 to plaintiff Donald Binsfeld from defendants Mortensen
$582,500.00 to plaintiff Donald Binsfeld's attorneys for fees from defendants Mortensen
$36,279.69 to plaintiff Donald Binsfeld's attorneys for costs and disbursements from defendants Mortensen
$286,501.74 to involuntary plaintiff Regent from defendants Mortensen
$465,978.47 to plaintiffs Donald and Cindy Binsfeld from defendants Mortensen

Summary of Facts:
Donald Binsfeld, in the scope of his employment with Jones Sign, was partially electrocuted and fell to the ground 40' below while working on an elevated outdoor advertising billboard July 24, 2008. The subject property, frontage road to U.S. Highway 41/141 in Little Suamico, was owned by Donald Conrad and leased to John Mortensen, dba Mortensen Properties.

Donald's workers compensation benefits were covered by Regent Insurance Company.

Donald Binsfeld and his wife Cynthia Binsfeld filed a complaint against Conrad, and John and Anthony Mortensen in the Brown County Circuit Court. Regent Insurance was added as involuntary plaintiff.

The plaintiffs alleged the defendants negligently placed the billboard too close to utility power lines, failed to provide a safety railing or guard around the catwalk, failed to have safety cages to prevent contact with electrical power lines and had metal rather than PVC poles. Donald made a claim for physical injuries including electrical burns, amputation of toes on right foot, orthopedic injuries, cognitive problems, PTSD, depression, past and future medical expenses, and past and future lost income. Cynthia made a claim for loss of society, companionship and consortium. They sought compensatory and punitive damages.

Conrad denied negligence and asserted affirmative defenses of contributory negligence and failure to mitigate damages.

The Mortensens asserted affirmative defenses of contributory negligence, failure to mitigate damages, intervening causes and waiver and estoppel.

The defendants denied Andrew Mortensen a partner in Mortensen Properties.

The Binsfelds filed a motion for default judgment against Conrad on grounds the defendant missed the statutory deadline to serve his answer. Conrad claimed he received an extension that was not memorialized in writing. The court denied the motion.

Conrad filed a motion for summary judgment on grounds he was not responsible for the sign. Judge William Atkinson granted summary judgment to Conrad March 23, 2003.

The Mortensens filed a motion for summary judgment on grounds Donald Binsfeld's employer constructed and maintained the subject sign. Judge Atkinson held Joes Sign Company committed all alleged acts of negligence. He granted the motion Nov. 10, 2005 and dismissed the plaintiffs' second amended complaint. The case was remanded by the Court of Appeals.

The Mortensens made an offer of judgment to the plaintiff in the amount of $175,000.

The matter proceeded to jury trial before Judge Kendall M. Kelley. The jury returned a verdict June 26, 2008 finding Mortensen Properties was negligent and their negligence was a cause of injury to Donald Binsfeld, the negligence of Jones Sign Company was a cause of injury to Donald Binsfeld and Donald Binsfeld was negligent and his negligence was a cause of his injuries.

Mortensen Properties was found to be 35 percent negligent as to any defect of the billboard, Jones 25 percent negligent as to any defect of the billboard, Jones 35 percent negligent as to training or supervising its employees and Donald Binsfeld 5 percent negligent.

The panel determined the following sums of money would reasonably compensate Donald: $1,000,000 for past pain, suffering, disability and disfigurement; $3,000,000 for future pain, suffering, disability and disfigurement; $366,845 for past lost earning capacity; $647,385 for future lost earning capacity; and $254,893 for past medical expenses (answered by court). It found $150,000 would fairly and reasonably compensate Cynthia for loss of her husband's society, companionship and household services.

The parties agreed to settle with defendants Mortensen and petitioned the court for distribution of $1,800,000 as follows: $35,000 to Cindy Binsfeld, $17,500 to her attorneys for fees, $582,500 to Donald Binsfeld's attorneys for fees, $36,279.69 to Donald Binsfeld's attorneys for costs and disbursements, $376,240.10 to Donald Binsfeld, $286,501.74 to Regent as to its lien, and the balance of $465,978.49 to Donald and Cindy Binsfeld.

Judge Kelley ordered approval of the settlement Aug. 7, 2008. The action was dismissed with prejudice Sept. 16.

Court: Circuit Court of Wisconsin, Eighth Judicial District, Brown County.

Westlaw Citation:
2008 WL 5605701

West's Jury Verdicts - Wisconsin Reports Citation:
West’s J.V. Wis. Rep., Vol. 4, Iss. 9, p. 5 (2009)