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Case of the Month June 2024

Plaintiffs Recover $600K Following Trip, Fall Accident on Plywood Walkway at Construction Site in Dodgeville

Leigh v. J.H. Findorff & Son Inc.

Case Type:
Premises Liability - Slip/Trip & Fall
Premises Liability - Trip Over Object
Premises Liability - Negligent Repair/Maintenance
Construction & Industrial Accidents - Fall

Specific Liability:
Individual employed with elevator installation and repair company tripped and fell due to loose plywood on a walkway while pulling crated elevator equipment at a construction site

General Injury:
Injuries to right knee and right hip, requiring a total hip replacement

Jurisdiction:
State: Wisconsin
Circuit Court of Wisconsin, Fifth Judicial District, Dane County.

Related Court Documents:
Plaintiffs' complaint: 2021 WL 12148240
Third-party complaint: 2022 WL 21783860
Stipulation approving allocation of settlement proceeds: 2023 WL 8281201
Order approving allocation of settlement proceeds 2023 WL 8357831

Case Name:
Leigh et al. v. J.H. Findorff & Son Inc. et al.

Docket/File Number:
2021-CV-001529

Result Amount:
$600,000

Result Date:
May 18, 2023

Judge:
Rhonda L. Lanford

Attorneys:
Plaintiffs: Robert S. Duxstad, Duxstad, Bestul & McNaughton SC, Monroe, WI; David R. Ewert, Duxstad, Bestul & McNaughton SC, Monroe, WI
Defendants (J.H. Findorff and Phoenix Insurance Co.): John A. Griner IV, Chapin & Associates, Brookfield, WI
Defendants (Braun ThyssenKrupp Elevator and Great American Ins. Co.): Patrick W. Brennan, Crivello Carlson SC, Milwaukee, WI; Kevin R. Landgraf, Crivello Carlson SC, Milwaukee, WI
Defendant (Navigators Insurance Co.): Michael Duffy, Wilson Elser Moskowitz Edelman & Dicker LLP, Chicago, IL; David A. Frank II, Wilson Elser Moskowitz Edelman & Dicker LLP, Milwaukee, WI; Ashley Conaghan, Wilson Elser Moskowitz Edelman & Dicker LLP, Chicago, IL; Megan B. McCormick, Milwaukee, WI

Result Type:
Settlement

Experts:
Plaintiff: Not Reported
Defendant: Not Reported

Breakdown of Award:
$98,195 to plaintiff John Leigh for damages
$196,391 to involuntary plaintiff Sentry Insurance Company for reimbursement of its worker's compensation lien
$120,000 to plaintiff Cathy Leigh for loss of consortium damages
$25,414 for pro rata share of out-of-pocket costs incurred
$160,000 to plaintiffs' counsel for attorney fees

Summary of Facts:
Plaintiff John Leigh, a 58-year-old male, was reportedly working within the course and scope of his employment with Braun ThyssenKrupp Elevator LLC, a company that specialized in designing, installing and repairing elevators and lifts, at a jobsite referred to as the Upland Hills Dodgeville Hospital Addition, located in Dodgeville, Wis. The plaintiff said that defendant J.H. Findorff & Son Inc. served as the general contractor on the construction project and had custody and control over the jobsite.

The plaintiff said that as he and another Braun ThyssenKrupp Elevator employee were pulling crated elevator equipment over a plywood pathway installed and maintained by J.H. Findorff, he was walking backwards using a hand jack, while the other employee was pushing the load with another hand jack. The two hand jacks were allegedly loaded with rails for an elevator that would have weighed approximately 2,000 pounds.

The plaintiff said that as he and the other employee reached an area where the pathway turned, his right foot became caught under a loosely laid sheet of plywood that had cupped, which caused him to trip. According to the plaintiff, the jack handle struck his right thigh and the weight of the crated elevator materials caused him to fall to the ground.

The plaintiff said that he suffered personal injuries due to the accident, which included injuries to his right knee and right hip, which required him to undergo a total hip replacement.

The plaintiff contended that on the day before his accident, the plywood walkway began to break due to the weight of the elevator materials, and J.H. Findorff's employees placed additional sheets of cupped and/or wavy plywood found around the construction site in an attempt to reinforce the pathway.

In their complaint, the plaintiff and his wife, plaintiff Cathy Leigh, named J.H. Findorff and its insurer, Phoenix Insurance Company, as defendants. The plaintiffs asserted that J.H. Findorff's negligence, which included failing to properly construct and maintain the plywood walkway, failing to warn John Leigh and other workers of the pathway's dangerous condition and failing to properly inspect and supervise the premises, caused the accident.

The plaintiffs also contended that J.H. Findorff's failure to maintain the safety of their premises violated the Wisconsin Safe Place Statute, Wis. Stat. Section 101.11.

J.H. Findorff and Phoenix Insurance subsequently filed a third-party complaint against defendant Braun ThyssenKrupp Elevator and its reported insurers, defendants Great American Insurance Company and Navigators Insurance Company, arguing that J.H. Findorff was entitled to a tender of defense and indemnification from Braun ThyssenKrupp Elevator pursuant to the terms of their subcontract agreement.

The parties agreed to resolve the plaintiffs' claims arising from the accident for $600,000, in which Phoenix Insurance and Great American Insurance Company agreed to pay John Leigh $480,000 and Cathy Leigh $120,000.

The parties sought court approval of the settlement and the court approved the settlement terms.

Circuit Court of Wisconsin, Fifth Judicial District, Dane County.

Westlaw Citation:
2023 WL 9020584