JSH Reporter Summer 2015 - Page 29

TRIALCOURTDECISIONS 029 Defendant Clemett’s wife who was seated two rows away. Fearing for their safety and the safety of others (there were several women and children nearby), the Defendants struck the Plaintiff three times as he continued to threaten them. The Defendants argued they acted reasonably under the circumstances and blamed the Plaintiff for starting the altercation. Defendants also claimed the Arena was negligent for failing to enforce the NHL fan code of conduct (Plaintiff should have been ejected earlier in the game). Last, Defendants argued Plaintiff was intoxicated, assumed the risk of injury, and was a bully. Plaintiff was the aggressor, not the defendants. Plaintiff declined treatment, but continued to harass the Defendants even after he was restrained. The next day Plaintiff sought treatment claiming he suffered a fractured skull, concussion, traumatic brain injury, permanent brain injury, migraine headaches, TMJ, 50% sensorineural hearing loss in the right ear, and several more health-related complications. Plaintiff further claimed he spent the next two years recovering from his injuries, and that the brain injury, tinnitus, and hearing loss were permanent. Plaintiff called a brain scan imaging expert, a neurologist and a neuropsychologist to testify Plaintiff sustained a permanent brain injury and cognitive deficiencies as a result of the altercation. Plaintiff also called an ENT doctor to testify he sustained a 50% permanent hearing loss in his right ear; an oto-neurologist to testify he sustained permanent tinnitus; and a family doctor to testify he suffered from ongoing TMJ, depression, headaches, insomnia and erectile dysfunction. Defendants called a neuropsychologist to testify Plaintiff did not sustain a permanent brain injury. No cognitive (memory) complaints were reported until 13 months after the incident. All neurological exams were normal and there was no evidence of any brain injury on CT or MRI scans. Based on neuropsychological testing and the lack of any corroborating clinical evidence of a brain injury, the neuropsychologist concluded Plaintiff was malingering. Defendants also retained a neurologist and a security expert. Plaintiff’s counsel asked the jury to award Plaintiff $3.14 million. Defendants argued Plaintiff started the fight and was therefore 100% responsible for any and all injuries. In the alternative, Defendants argued Plaintiff was at least 70% at fault, Defendants were each 10% at fault, and Jobing.com Arena was 10% at fault for not ejecting the Plaintiff earlier in the game. Before trial, Defendants jointly offered Plaintiff $60,000 ($30,000 each) and filed Offers of Judgment. Plaintiff filed a joint Offer of Judgment in the amount of $950,000. The Jury deliberated for approximately 1 hour and 15 minutes before returning a unanimous verdict for the Defendants. Bodamer v. View Builders October 21, 2014 Maricopa County Superior Court Edward Hochuli and Jeremy Johnson Plaintiff, a 58-year-old welder, alleged that he fell through an unprotected hole in the floor (where a staircase was to be installed) in a large worksite in Flagstaff, AZ. Defendant general contractor, represented by Jeremy Johnson and Ed Hochuli was the general contractor for the project. Defendant Wallace Steel Services was contracted to erect and install the steel staircases and Defendant Arizona Bridge & Iron was hired by Defendant Wallace Steel Services to provide the labor necessary for the erection and installation of the steel staircases. Plaintiff was employed by non-party, Yavapai Mechanical, which was to install furnaces and air conditioning units, as well as running the ductwork through the walls. Plaintiff alleged that Defendant, as the general contractor for the worksite, failed to appropriately discover and correct dangerous conditions at the worksite and failed to hire safe subcontractors. Plaintiff also alleged that Defendant Arizona Bridge & Iron’s employee had removed the safety railings from the stairwell while Plaintiff was working in the area prior to the fall, and that the employee forgot to replace the railing when he completed his work. Defendant general contractor denied liability, advancing the defense that Plaintiff was an experienced construction worker, who had worked at the jobsite for several months prior to the fall. Defendants alleged that Plaintiff could not prove that he had not simply fallen down the stairs or, in the alternative, that Plaintiff was carrying trash at the time of his fall, was in