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Trucker attributed loading-dock mishap to bakery's negligence

Amount:

$5,000,000

Type:

Mediated Settlement

State:

New Jersey

Venue:

Gloucester County

Court:

Gloucester County Superior Court

Injury Type(s):

leg-fracture (fracture, fibula); leg-scar and/or disfigurement, leg; knee-lateral meniscus, tear; knee-fracture, tibial plateau; other-buttocks; other-dialysis; other-loss of tissue; other-physical therapy; other-compartment syndrome; other-fasciectomy/fasciotomy; urological-kidney; surgeries/treatment-debridement; surgeries/treatment-open reduction; surgeries/treatment-external fixation; surgeries/treatment-internal fixation; mental/psychological; mental/psychological-anxiety

Case Type:

Premises Liability; Workers' Compensation; Professional Negligence; Premises Liability - Dangerous Condition; Worker/Workplace Negligence - Negligent Supervision

Case Name:

Michael Wagenbaur and Lisa Greenwood v. Aversa's Bakery, Aversa's Italian Bakery, Ryan Pustizzi, MGH Distributors and Michael Haftel, No. GLO-L-0573-14

Date:

September 1, 2016

Parties

Plaintiff(s):

Lisa Greenwood (Female), 

Michael Wagenbaur (Male, 44 Years)

Plaintiff Attorney(s):

Andrew R. Duffy; Saltz, Mongeluzzi, Barrett & Bendesky, P.C.; Philadelphia, PA, for Lisa Greenwood, Michael Wagenbaur ■ Joel Wayne Garber; Garber Law; Voorhees, NJ, for Lisa Greenwood, Michael Wagenbaur

Plaintiff Expert(s):

Guy Fried; M.D.; Physical Medicine; Philadelphia, PA called by: Andrew R. Duffy ■ John Gatti; M.D.; Plastic Surgery/Reconstructive Surgery; Cherry Hill, NJ called by: Andrew R. Duffy ■ Mark Lukas; Vocational Rehabilitation; Philadelphia, PA called by: Andrew R. Duffy ■ Mona Yudkoff; R.N., M.P.H., C.R.R.N.; Life Care Planning; Bala Cynwyd, PA called by: Andrew R. Duffy ■ David Hopkins; A.S.A.; Economics; King of Prussia, PA called by: Andrew R. Duffy ■ Charles Penza; Engineering; Hammonton, NJ called by: Andrew R. Duffy ■ Kenneth Graf; M.D.; Orthopedic Surgery; Camden, NJ called by: Andrew R. Duffy

Defendant(s):

Ryan Pustizzi, 

Michael Haftel, 

MGH Distributors, 

Aversa's Italian Bakery

Defense Attorney(s):

Christopher J. O'Connell; Sweeney & Sheehan P.C.; Westmont, NJ, for Ryan Pustizzi, Aversa's Italian Bakery ■ Keith J. Gentes; Liebling Malamut & Sunkett, LLC; Cherry Hill, NJ, for Michael Haftel, MGH Distributors

Insurer(s):

Nationwide Mutual Insurance Co. for Aversa's Bakery, Aversa's Italian Bakery, and Ryan Pustizzi; Allstate Insurance Co. for Aversa's Italian Bakery, and Ryan Pustizzi

Facts:

On March 22, 2013, plaintiff Michael Wagenbaur, 44, a delivery-truck driver, had parked a box truck at the rear loading dock of Aversa's Italian Bakery, in Turnersville. He was waiting to pick up an order of bread. Several delivery trucks were waiting ahead of him. He stepped out of the truck, leaving its engine running and the driver's side door open. Then he rearranged racks in the back of the box truck. As he was doing so, bakery employee Ryan Pustizzi entered the box truck and drove it forward, in order to allow another vehicle to leave. The movement of the box truck threw Wagenbaur about eight feet, and onto the asphalt. He claimed injuries to his right leg and left buttock. Wagenbaur sued Aversa's Italian Bakery and Pustizzi. (He initially also sued his employers, Michael Haftel and MGH Distributors, on a worker's compensation claim. They were dismissed with prejudice, prior to the settlement. Aversa's Italian Bakery was initially named in error as "Aversa's Bakery" and the duplicate entity was removed from the case caption.) Wagenbaur alleged that the bakery was negligent in the operation and supervision of the loading dock on the premises. He further argued that Pustizzi, as an employee, was negligent in attempting to move the truck without warning. Wagenbaur maintained that he had parked the truck in a manner that blocked traffic in order to save his spot in line and that he left the engine running because of the cold weather. Wagenbaur's engineering expert provided a report which concluded that Aversa's Italian Bakery failed to provide proper supervision and direction for the delivery vehicles on the premises. The defendants denied liability, arguing that Wagenbaur was contributorily negligent in allowing the box truck to interfere with the flow of traffic around the loading dock. They contended that he was also negligent in leaving the truck engine running with the driver's side door open.

Injury:

Wagenbaur was taken by ambulance to the emergency room of JFK Medical Center and transferred to the shock trauma ward of Cooper University Hospital. He was hospitalized for more than a month. Wagenbaur was diagnosed with a compression fracture of the lateral tibial plateau (Type IIIA Schatzker fracture); right fibular head fracture; and a tear of the lateral meniscus of the right leg. He also developed gluteal compartment syndrome in the left buttock. Fifteen surgeries were required, including 11 fasciotomies, consisting of debridement and irrigation of the left gluteus, and four leg surgeries, including implantation and removal of external fixators and open reduction and internal fixation of the tibia. He also had open surgery to repair the lateral meniscus. Wagenbaur began physical therapy shortly after the incident and was still receiving treatment at the time of settlement. He developed kidney dysfunction due to necrotic tissue in the left gluteus and temporarily required hemodialysis. He also developed an anxiety disorder and required psychological counseling. Wagenbaur sustained significant tissue loss to the left buttock and massive scarring to the right leg. The tibia fracture resulted in a nonunion and remains unhealed. He requires a cane, walker, or wheelchair to ambulate. He believes he is unable to work and is totally disabled. He claimed $1.2 million in total medical expenses and lost wages of $32,000. Wagenbaur's wife, Lisa Greenwood, brought a derivative claim for loss of consortium. In a series of reports, Wagenbaur's experts provided opinions on his condition. Wagenbaur's treating physiatrist reported that he was totally disabled and would never regain full function of his right leg. His treating orthopedic surgeon stated that he was totally disabled, might require an intermedullary rod, and could lose his right leg. His expert on plastic surgery reported that there were no available surgical options to treat his scarring and tissue loss. His vocational rehabilitation specialist stated he could not perform physical labor and was unqualified for less strenuous administrative positions. His expert economic expert provided a report which estimated Wagenbaur's lost earning potential between $180,000 and $300,000. Wagenbaur's life care planning expert provided a report which concluded he will require between $850,000 and $1.5 million for in-home care. The defendants disputed the extent of Wagenbaur's' damages, arguing that he could return to work in a white-collar profession, given his condition.

Result:

The parties agreed to a $5 million settlement during pre-trial mediation before retired judge Mark Baldwin. Of the total amount, $4.5 million was paid from Aversa's $5 million policy with Nationwide Mutual Insurance Co., and the remainder was paid from Aversa's $500,000 policy with Allstate Insurance Co.

Trial Information:

Judge:

Jean McMaster

Editor's Comment:

This report is based on information that was provided by plaintiffs' counsel. Defense counsel did not respond to the reporter's phone calls.