Posted by Gary Burger on July 19, 2016 in Premises Liability
Two weeks ago we settled a bike premises liability case against AT&T and Holloran Contracting for $270,000. Our client, Kimball Nill, had a terrible bike crash but made a miraculous recovery. It happened when he was riding his bicycle on the sidewalk along Baxter Road from his house to the post office to mail a letter.
Kimball is super safety conscious – he wore an orange vest (like a construction worker) and had on his helmet. It had just rained and the sidewalks were damp. He only had time to think there was something amiss with the sidewalk before his bicycle flipped and he crashed.
He determined after he woke up that he crashed into an area that had been dug out and the sidewalk removed – but water had pooled in and filled in this area following the rain. It was difficult to quickly discern the difference between the sidewalk and the water. He was bleeding from his face and head.
Kimball got up, was a little bit out of it and warned a jogger about the hole. He walked home pushing his bike. His wife took him to the emergency room and he received treatment – he had facial lacerations and head trauma.
Unbeknownst to Mr. Nill, AT&T had been doing work in the area. It had a sub contractor, Holloran Contracting, that had removed the sidewalk some weeks before.
Holloran Contracting did not obtain a permit to remove the sidewalk as required by St. Louis County ordinance. Neither did AT&T. Holloran Contracting and AT&T pointed the finger at each other about who was supposed to pull the permit.
The lawsuit was both a dangerous condition of property and negligence claim against Holloran and AT&T, as well as negligence per se claims against both entities.
We deposed Art Becker, a 42 year public works official with St. Louis County. He testified that:
- AT&T and Holloran did not get a permit to do this work.
- A permit should have been requested to remove the sidewalk.
- This requirement comes from state and county ordinances.
- The main purpose behind the state and county ordinances is the health and safety of the public.
- The statute and ordinance requires that there be barricades and sidewalk closed signs and they “are a must”
- The County received a call from Ms. Nill complaining about the absent sidewalk and did not know about it. They argued with her and said no project was going on. They sent an inspector out to see who was doing the work.
- St. Louis County went and put a “sidewalk closed” sign up to warn people of the empty sidewalk, after Mr. Nill crashed.
- They did not figure out who was going this work until 7 days after Mr. Nill’s injury.
- It is important to put barricades and signs up so no one is injured when a side walk is removed.
- Defendant Holloran did not have “sidewalk closed” signs at all.
- Holloran Contracting violated the ordinance and statue by not getting a permit.
- Holloran Contracting and AT&T violated the ordinance and statue by not putting the fence up and appropriate signage.
- The County issued a notice of ordinance violation to AT&T following this incident.
- There was no information from AT&T or no documents from AT&T or Holloran that they communicated to St. Louis County about their ordinance violation.
- A sidewalk closure like that can affect pedestrians, people in wheelchairs, people on bikes, old people, kids, everybody. There was no shoulder on the road and people are forced to use this sidewalk to go along Baxter Road.
- This is one of the reasons why they have ordinances and regulations and the need for signs to protect the public.
- This is a very unusual occurrence – it’s the only one Mr. Becker is aware of and he has been doing this job for 42 years. Holloran Contracting and AT&T have failed to pull permits other times when they were doing work.
During the initial emergency room visit Mr. Nill was diagnosed with a closed head injury and facial fractures. He was admitted for observation and later released. About a month later, Kimball’s wife took him to the emergency room and stated that he “didn’t seem right” and that he had been having headaches, sleeping more than usual, was unable to dress himself, was unable to feed himself, and could not perform certain other activities. He was admitted and found to have a right frontal subdural fluid collection/hematoma that needed to be evacuated.
The next day Kimball underwent a Frontal Craniotomy for Subdural Hematoma procedure. The neurosurgeon cut open his head, removed his skull and the dura (membrane around the brain). “As soon as the dura was opened, there was spontaneous emanation of high pressure chronic subdural fluid.” A hemorage was repaired as well.
Less than a week after the surgery on November 18, 2014, Kimball was taken back to the emergency room for confusion and slurred speech and hand and arm numbness and loss of use. Mr. Nill underwent treatment for his right shoulder pain shortly after the crash as well.
Over the next few months, Mr. Nill continued his follow care with his doctors. He was prescribed anti-seizure medications and underwent additional head scans to monitor him after the surgery.
Kimball made a miraculous recovery but obviously went through a lot. His bike accident injuries were deadly and he narrowly escaped death and permanent brain damage. But he completely recovered and is now working and with no real problems other than a scar under his hair. But he no longer rides a bike.