Manger of Hobby Store Killed - Settled for $1.1 million
Manager of hobby store killed while trying to close mechanical gate
SETTLEMENT $1,100,000
CASE
Joyce Jones, Kelli Jones & Kelli Goldner v. The DePietro Corporation, Frank DePietro & Sons, Fulmer Construction & All Cities Fence & Construction, No. BC 318466
COURT Superior Court of Los Angeles Country, CA
JUDGE Andria Richie
DATE 9/2/2005
PlAINTIFF ATIORNEYS Gregory G. Rizio (lead), Rizio& Nelson, Santa Ana, CA
R. Shawn Nelson, Rizio & Nelson,Santa Ana, CA
DEFENSE ATTORNEY(S) Diane M. Coe (lead), Jackson & Wallace LLP, Sherman Oaks, CA (Frank DePietro & Sons Inc.)
Christopher D. Lockwood, Arias, Aaen,San Bernardino, CA (The DePietro Corp.)
Edward F. Morrison, Jr., Lewis,Brisbois, Bisgaard& Smith LLP,Los Angeles, CA (Fullmer Construction)
James OdIum, Mundell, OdIum & Haws, San Bernadino, CA (for Horizon Hobby)
Jack R. Reinholtz, Prindle, Decker & Amaro (for All Cities), Long Beach, CA (The DePietro Corp.)
Jason T. Yu, Jackson & Wallace LLP, Sherman Oaks, CA (Frank DePietro & Sons Inc.)
FACTS & ALLEGATIONS
On March 19, 2004, plaintiff decedent Kevin Jones, 56, a night shift manager at Horizc Hobby, was finishing his shift. This included manually closing rolling security gate, the design of which was known as a "pigg back" or "telescoping" gate. When pushed, the leading gate would roll down a V-shaped track. Halfway down, the leader leaf of the gate's rectangular metal frame piece, which was welded to the gate, was supposed to catch the trailing portion the gate's rectangular metal frame catcher, which was all welded to the gate. When the two small welded catcher pieces made contact, they would travel together along the track until the gate was completely closed.
On this night, however. the leading leaf's front wheel came off the track So the two catcher pieces did not engage. When the leading leaf rolled clear of the trailing leaf, the former, losing, support of the lateral gate leaf, derailed, falling directly on Jones, who was crushed under the weight of the 500-pouI leading leaf. He died at the scene. Jones' estate; his wife, Joyce; and his daughters sued the designer, manufacturer and installer of the gate, Ontario based All Cities Fence & Construction Co. Inc.; the general contractor, Ontario-based Fullmer Construction; proper owner The DePietro Corp.; and property manager Frank DePietro & Sons, for wrongful death damages based on streict products liability and general negligence theories. (DePietro Corp. cross-claimed against Jones' employer, Horizon Hobby but never served it, and the company was dismissed from the Suit under California's exclusive remedy law) against All Cities and Fullmer. the plaintiffs alleged strict products liability (design, manufacturing and marketing defect.
The plaintiffs claimed that the gate without an architect approval and that it should have catchers at the top -a simple inexpensive and failsafe solution. The plaintiffs alleged that the defendants began using this design after the instant fatality. The plaintiffs also alleged that a gate this large and heavy should have been designed to open and close mechanically rather than manually. The plaintiffs alleged that the defendants had installed
several other piggy-back style gates that closed mechanically.
As for manufacturing defect, the plaintiffs contended that the leaf wheels had been installed misaligned, substantially increasing the likelihood of derailment. On the marketing defect claim, the plaintiffs argued that Fullmer and All Cities failed to provide any warning as to the possibility of gate derailment, especially given that it was clear
that a derailment coupled with the weight of the gate would result in a catastrophic injury or death for the person pulling it closed.
The negligence claim against all defendants. The argument as to All Cities and Fullmer covered the same ground as the products liability claims. As to the DePietro defendants, the plaintiffs argued failure to inspect the property and failure to
warn against dangerous conditions. Fullmer contended that the design and installation of the gate were well within industry standards. Its counsel argued that the company was not responsible under a strict products liability theory because it was not a manufacturer of a mass produced product, or for failure to warn, because the alleged defect was patent, i.e., open and obvious, rather than latent and second.
All four defendants argued that the decedent's employer, Horizon Hobby, was negligent to a significant degree, based upon its knowledge of past problems with the gate. They alleged that, although it knew of the danger, it never contacted any of the defendants to have the gate track repaired. They claimed that the Jones himself once declared, "I'll be damned if I let that gate kill one of my guys."
INJURIES/DAMAGES asphyxia: death
Jones was crushed and the compressional asphyxiation killed him. His wife and their daughters, Kelcey Jones and Kelli Goldner, sought $228,000 for loss of income (based on the decedent's annual income of $39,000 and a retirement age of 67), $2,110,000 for loss of household assistance and consortium, and an unspecified amount for loss of comfort and society. Jones' widow claimed she suffered emotional distress from the loss of her husband of nearly 38 years, who had been her high school sweetheart. She was prescribed anti-depressants. Kelcey Jones claimed she was partially dependent on her parents economically and sought $100 to $150 per month for loss of support. Although she did not specify for how long she was seeking this monthly amount. The defendant disputed the amount of damages sought, arguing that the annual income figure upon which the widow's claim for loss of support was based should nor include the decedent's quarterly discretionary bonus, as there was no guarantee that he would have continued to receive the bonuses. Accordingly, the defendants claimed the total loss of income should be $185,000. The defendants also argued that a portion of the loss of services claim was not supported by the facts and their economist valued the claim at about $125,000.
RESULT
The plaintiffs settled with all defendants for $1.1 million. All Cities paid $1.03 million, slightly over its policy limit. Fullmer paid $30,000. The DePietro defendants paid $40,000, including $17,500 from DiPietro & Sons and $22,500.
from DiPietro Corp.
DEMAND $1.2 million
OFFER $750,000
PLAINTIFF EXPERTS
Peter Formuzis, economics, Santa Ana, CA
Jerry H. Hildreth, property management, Tehachapi, CA
Ken Obenski, P.E., mechanical, San Diego. CA
DEFENSE EXPERTS
Joseph W. DeCarlo, property management,Costa Mesa, CA (for All Cities and Fullmer)
Mack A. Quan, mechanical, Los Angeles, CA(Expert for Fulmer Consrruction)
Ken Solomon. civil, Woodland Hills, CA(for All Cities)
Paxton B. Starksen. mechanical, Long Beach, CA (for DePietrn)
Ted Vavoulis, economics. Pasadena. CA
