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Framers fell from basket on forklift not meant for the task
Nueces County Court at Law No. 1
hip; leg-limp; back-stenosis; back-fracture (fracture, L2), back (fracture, L2);
back-fracture (fracture, L2), vertebra (fracture, L2);
neck-stenosis; other-physical therapy; other-pins/rods/screws; other-hardware implanted; other-comminuted fracture; other-fracture, displaced;
other-compression fracture; other-decreased range of motion; pelvis-fracture (fracture, pubic ramus), pelvis (fracture, pubic ramus);
shoulder-fracture (fracture, scapula), shoulder (fracture, scapula);
shoulder-rotator cuff (supraspinatus muscle/tendon, tear), injury (tear) (supraspinatus muscle/tendon, tear);
epidermis-numbness; epidermis-contusion; urological-hematuria; pulmonary/respiratory; pulmonary/respiratory-respiratory
Workplace – Forklift, Workplace Safety; Slips, Trips & Falls – Fall from Height; Worker/Workplace Negligence – Negligent Supervision
Abraham Arredondo and Jose Cervantes v. Ullah Investments, L.L.C. and Victor Aguirre,
January 31, 2018
Jose Cervantes (Male, 40 Years),
Abraham Arredondo (Male, 20 Years)
David E. Harris;
Sico Hoelscher Harris & Braugh LLP;
Jose Cervantes, Abraham Arredondo ■ Louie J. Cook;
Sico Hoelscher Harris & Braugh LLP;
Jose Cervantes, Abraham Arredondo
Ullah Investments .L.LC.
Pro se; for
Victor Aguirre ■ Ramon Gerardo “Jerry” Rios;
Law Office of Jerry Rios;
Ullah Investments .L.LC.
On Oct. 3, 2013, plaintiff Abraham Arredondo, 20, a framer, and plaintiff Jose Cervantes, 40, a framer, were working on the renovation of a hotel on Interstate 37 in Mathis. They were in a basket ascending to the third floor by an industrial forklift. The basket fell 10 to 15 feet onto a concrete surface, and the plaintiffs sustained multiple injuries. They were working for framing subcontractor Victor Aguirre, who was also operating the forklift. Ullah Investments LLC was the general contractor and had provided the forklift. The plaintiffs sued Aguirre and Ullah for negligence. Aguirre was pro se and did not attend trial. The plaintiffs claimed that Ullah knew that neither the basket nor the forklift were meant for lifting personnel, but that the plaintiffs had been required to access the third floor in this makeshift fashion repeatedly during the project. Ullah had used this method of elevating personnel on other projects, as well. In addition, the plaintiffs noted that, although Ullah had an on-site supervisor on numerous prior hotel projects, it did not on this project. Ullah’s on-site supervisor had been injured at home some weeks earlier, and no replacement was hired, the plaintiffs alleged. Plaintiffs’ counsel acknowledged that Aguirre failed to operate the forklift properly, but they argued that Ullah was 85 to 90 percent responsible for the incident. Ullah denied negligence. It contended that this method of elevating personnel was safe when performed properly, but that the forklift operator failed to chain the basket to the forklift. Ullah maintained that forklift safety and forklift training were the responsibility of Aguirre alone. Arredondo was unaware that the basket was not chained to the fork. However, Cervantes acknowledged that he saw that the basket was not chained to the fork and that he mentioned it to Aguirre, who told him to get in the basket anyway.
The plaintiffs were flown by helicopter to a hospital. Cervantes sustained a significant L2 compression and burst fracture extending into the right lamina, with posterior displacement of bone and moderate spinal stenosis; a milder compression fracture of the superior half of the T11 vertebral body; and bilateral atelectasis. Arredondo sustained a comminuted fracture of the left (non-dominant) humeral neck; a possible partial thickness tear of the left supraspinatus tendon; a left scapular body fracture; a minimally displaced comminuted right inferior pubic ramus fracture; and hypokalemia. Both plaintiffs sustained bumps and bruises, as well. Cervantes was in the hospital through Oct. 17. Initially, he was admitted to intensive care and was given a back brace and pain medication. After being transferred to the floor, he developed bilateral atelectasis, a respiratory complication. He was transferred back to intensive care for breathing treatments. His oxygen level improved, but his pain worsened. On Oct. 8, he underwent surgery, including decompression at L2 with re-impaction of bone fragments in the spinal canal. The surgery also included a fusion at T12, L1, L3 and L4, with rods, autologous bone marrow and allograft. On Oct. 31, he followed up with a family doctor and complained of pain radiating from his lower back into his hips. He was using a back brace and walker and exhibiting gait guarding and limited range of motion in the lumbar spine. The doctor’s impression was lumbago, and he wrote a note restricting Cervantes from walking long distances. Cervantes underwent physical therapy from Jan. 7 to Feb. 3, 2014, a total of 12 sessions. At discharge, he did not complain of pain, but did have a mild sensation of the middle and lower back feeling asleep. Arredondo was discharged from the hospital on Oct. 4 with pain medication and with his left arm in a sling. He was instructed to follow up with an orthopedic surgeon on Oct. 10. He returned to the emergency room on Oct. 5 with complaints of pain and blood in the urine. He went to an orthopedic surgeon on Oct. 10 and complained of pelvic pain and left shoulder pain radiating to the thumb. On Oct. 16, he went to a primary care clinic with persistent left shoulder and neck pain. He underwent physical therapy from Oct. 16, 2013, to Jan. 3, 2014, for lower back, left shoulder and right hip pain. He also saw an orthopedic surgeon during this time. At a visit to the orthopedic surgeon on Jan. 15, 2014, the records reflect full range of motion in the humerus and pelvis and minimal pain. On Jan. 10, 2018, he returned to the orthopedic surgeon and said that the left shoulder and right hip pain had never stopped. An MRI showed a possible partial-thickness tear of the supraspinatus tendon. The doctor recommended arthroscopic rotator-cuff repair with subacromial decompression. He estimated that the cost would be $28,000, not including the necessary rehabilitation afterward. Cervantes sought $340,620.37 for past medical expenses. He also claimed past and future physical pain and mental anguish, past and future physical impairment and past and future disfigurement. Arrendondo sought $84,037.67 for past medical expenses and $35,000 for future medical expenses. He also claimed past and future physical pain and mental anguish and past and future physical impairment.
The jury found negligence and comparative responsibility of 75 percent on Ullah and 25 percent on Aguirre and awarded the plaintiffs $5,159,660.04. The award included all of the plaintiffs’ past medical bills.
Abraham Arredondo: $84,038 Personal Injury: Past Medical Cost; $35,000 Personal Injury: Future Medical Cost; $250,000 Personal Injury: Past Physical Impairment; $100,000 Personal Injury: Future Physical Impairment; $500,000 Personal Injury: past physical pain and mental anguish; $250,000 Personal Injury: future physical pain and mental anguish; Jose Cervantes: $340,620 Personal Injury: Past Medical Cost; $250,000 Personal Injury: Past Physical Impairment; $700,000 Personal Injury: Future Physical Impairment; $150,000 Personal Injury: Future Disfigurement; $1,500,000 Personal Injury: past physical pain and mental anguish; $1,000,000 Personal Injury: future physical pain and mental anguish
This report is based on information that was provided by plaintiffs’ counsel and Ullah Investments’ counsel. Aguirre’s counsel was not asked to contribute.