Attorney successfully argues $6.59M negligence case

06/24/2010

Kusherman v. Continental Florida Materials Inc. et al.

Case: Kusherman v. Continental Florida Materials Inc. et al.

Case no: CACE07027484

Description: Auto negligence

Filing date: Oct. 19, 2007

Trial dates: June 7-15, 2010

Jury award: $6.59 million

Judge: Broward Circuit Judge David Krathen

Plaintiff attorney: Mark David Gilwit, Gilwit & Associates, Boca Raton

Defense attorneys: Joseph Glick, Prince & Glick, Fort Lauderdale

Details: The site of the future Trump International Hotel and Tower in Fort Lauderdale was a busy place in 2007, as dozens of trucks carrying building materials rolled in and out.

Harvey Kusherman was one of many day laborers hired by Stiles Construction. His flagman's job was a simple one: Hold a stop-go sign and direct traffic to keep things flowing smoothly.

But on Jan. 24, after his second delivery of the day, Continental Florida Materials concrete truck driver Victor Dominguez ran into unexpected traffic on his way out because customers were huddled around a lunch wagon, blocking the exit.

Dominguez veered away from his usual exit, prompting a worried response from Stiles supervisor Jean Alcime, who briefly argued with Dominguez and gestured to him with his hands. Dominguez, relying on Alcime's hand gestures as directions, responded by putting his truck in reverse to get a better angle to leave.

He didn't notice Kusherman was directly behind him. The truck's tires ran over Kusherman's legs, crushing bones and muscles. The former flagman hasn't been able to walk normally since then. He has undergone several surgeries to replace skin, soft tissue and bone, and rods, screws and plates have been inserted in both legs.

A police investigation concluded a rear-view camera on the back of the truck was working but was too covered in mud to give the driver a clear picture.

Plaintiff case: Kusherman filed a lawsuit against Dominguez and Continental, claiming its employee failed to operate the truck in a safe manner.

Gilwit filed motions to strike the company's affirmative defenses and have the judge grant summary judgment. He argued Continental was fully liable for the damage, and Dominguez and Continental couldn't meet the burden of proving the Stiles supervisor or Kusherman was at fault.

He pointed to a 2008 contract between Stiles and Continental, assigning full responsibility for the prevention of accidents and worker injuries to Continental. The company also agreed to take on up to $3 million in liability and hold Stiles harmless.

Any blame Continental placed on anyone else was redirected back at them under the agreement, Gilwit said. In May, the judge struck the company's affirmative defenses and granted the motion, and the case proceeded with a trial on damages only.

At trial, Gilwit listed Kusherman's many physical impairments, including his continuing need for medical assistance and treatment for psychiatric trauma.

One of Kusherman's legs developed heterotopic ossification when bone developed in some of the crushed muscle, eliminating all mobility in one leg.

Defense case: Glick, who represented both Continental and the truck driver, argued the Stiles supervisor was to blame and argued Stiles was responsible for traffic control. He said Kusherman was comparatively negligent because he could have gotten out of the way.

The judge refused to allow nonparties on the verdict form for consideration of comparative negligence, but Glick claimed the judge erred by granting the motion for summary judgment and striking the company's affirmative defenses.

Glick argued some of Kusherman's physical limitations were due to preexisting conditions and contended Kusherman had surgery before the accident that resulted in some heterotopic ossification as well.

Outcome: The jury awarded Kusherman $6.59 million, including $5.45 million for pain and suffering, $1.03 million for past and future medical expenses and $106,000 for lost past and future wages. The final judgment has not yet been entered.

Quote: "It was clearly their intent to take on this responsibility for their work under this agreement. Now what they're seeking to do is point the finger at Stiles or an employee. They're effectively pointing at themselves," Gilwit said.

Post-verdict: Glick said he plans to file a motion for a new trial, claiming the non-economic damages were excessive and the judge erred by granting summary judgment. He will also appeal.

- Jose Pagliery