Falldown - Escalator - Department Store

Fulton County, GA

Superior Court

Verdict:

$832,340 apportioned at $316,160 against Neiman-Marcus and $382,720 against CSF. The verdict was reduced by 16% comparative negligence for a net verdict of $698,880.

Judge: Constance C. Russell Date of Verdict: 1/21/2003

Plaintiff’s Attorney(s):

Robert B. Lipman, Atlanta

Clyde E. Rickard, Atlanta

Defendant’s Attorney(s):

H. Clifton Cobb, Atlanta

Facts:

Defendant Neiman-Marcus contracted with Defendant Commercial Store Fixtures (CSF), the general contractor, to renovate its store located at Lenox Store Mall. The renovation was to take place over a two year period. On September 26, 2000, Plaintiff Sidney Dufour, who was the carpet sub contractor hired by CSF, was transporting oversized carpet up the escalator since the carpet roll was too large to fit in the freight elevator. On the seventh trip up the escalator, the front dolly jammed into the lip of the escalator, thereby causing the 1,000 pound roll of carpet to lodge. As a result, plaintiff and one of his employees were forced under the dolly and the weight of the oversized carpet. Both men were injured, but this case only involves Dufour’s injuries. Defendant Robert Bickford was CSFs on-site superintendent. Bickford was dismissed on the first day of trial before the jury was chosen.

Plaintiff alleged that CSF’s on-site superintendent and Neiman-Marcus’ loss prevention manager were on notice of the increased danger and risk to plaintiff and his employees from moving the oversized carpet rolls. Further, plaintiff claimed that CSF’s superintendent and Neiman-Marcus’ loss prevention manager had fully explored precautionary measures, including the necessity to remain at the base of the escalator in the vicinity of the safety switch in case of an emergency. Also, plaintiff asserted that when the carpet began to lodge, he had yelled twice to shut off the escalator, however, Bickford had been distracted and had left the vicinity of the safety switch. As a result of the incident, plaintiff, a 43 year old male, claimed that he suffered significant permanent leg and knee injuries which resulted in a 5% permanent partial disability to his body as a whole and that he was unable to return to work as a carpet installer due to his injuries.

Defendants contended that plaintiff knew all of the job requirements and accepted all conditions to do the job. Further, defendants asserted that plaintiff had previously transported similar carpet up the escalator. Defendants maintained that plaintiff refused to use a carpet dolly and used a dolly which did not have the same clearance for transport. Also, plaintiff did not train his employees on the use of the stop buttons on the escalator and did not have enough of his own employees present to help with the carpet transport. It was further claimed that plaintiff could have moved the carpet safely by cutting it into smaller sized rolls. In regard to plaintiff’s injuries, defendants argued that plaintiff had made a good recovery and also had returned to running his company seven months later.

Alleged Injury:

Primary injuries of a fractured tibial plateau requiring open reduction and internal fixation, a torn anterior cruciate ligament (ACL) and a torn lateral meniscus requiring repair surgery and then later arthroscopic removal of 30% of the lateral meniscus. Plaintiff claimed a 5% permanent partial disability to the body as a whole, the inability to continue work as a carpet installer, and secondary soft tissue back injuries. Plaintiff claimed $48,210 in past medical specials.

Jury Deliberations: 5 hours Insurance Carrier: Hartford

Expert Witnesses:

Plaintiff:

Thomas J. Moore, M.D. - Orthopedist — Atlanta, GA

Defendant: N/A

Case Caption:

Sidney Dufour v. Neiman-Marcus Grouc. Inc.. Commercial Store Fixtures. Inc and Richard Bickford

Case Number: 2001CV38388

Editors Note: Per plaintiff’s counsel, the case was impacted by the lack of credibility of defendants’ witnesses and defendants’ refusal to accept any responsibility for this incident. One other member of the carpet crew brought a separate claim for injuries arising from this incident. Per defense counsel, no lost wages could be claimed because plaintiff failed to provide proof of this element of damage during discovery. Further, plaintiff could not claim lost profits because he did not include his company as a party. However, defense counsel further asserted that juror debriefing revealed that the jury awarded lost income of approximately $124,058 even though the Judge instructed them not to consider any award for lost income or lost business profits. Defense counsel indicated at the time this case was prepared for publication that defendants will file post judgment motions to include a Motion for a New Trial and to reduce the verdict for all defendants and a Motion for JNOV for Neiman-Marcus.

Used with permission of JAS Publications. All rights to the use and reproduction of this case summary are reserved to JAS Publications, Copyright 2003.

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