Construction-site death results in $2.8M verdict

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A Montgomery County Circuit Court judge has awarded more than $2.8 million to the widow and two children of a construction worker who was run over by a dump truck going in reverse at a Rockville work site three years ago.

Judge Louise G. Scrivener found Diamond Waste Services Inc. and its driver, Bobby E. Beane, liable for the wrongful death of Randell Hart at the Twinbook Commons apartments, which were under construction.

The Dec. 19, 2009, incident left Myrtle Hart without a husband and Meagan and Shane, who were in their late teens or early 20s, without a father.

Michael J. Winkelman, the family’s attorney, said he offered to settle the case throughout the four-day trial for “considerably” less than what Scrivener eventually awarded. Winkelman said he found it “exceptionally shocking” that the case went to trial based on the strength of the evidence, which included an admission by company representatives that the driver had operated the truck improperly.

“I am hard-pressed to ever present a stronger case of negligence when I have a concession from two corporate representatives,” said Winkelman, of McCarthy, Winkelman & Morrow LLP in Bowie.

The attorney for Diamond Waste Services and Beane, Samuel J. DeBlasis II, did not return telephone and email messages Friday seeking comment on the case and Scrivener’s verdict. He is with DeCaro, Doran, Siciliano, Gallagher & DeBlasis LLP in Bowie.

Hart, 44, had just finished using a portable restroom at the work site when he crossed behind the dump truck being driven down a hill in reverse by Beane. Beane, having just dumped garbage at the top of the hill, was coasting down the incline, according to the complaint.

Because Beane had the truck in neutral, neither its reverse lights nor its audible signal of being in reverse were operating, the complaint added.

Hart, who worked for Frederick-based Gabe’s Services Inc., yelled “Stop” three times before the truck struck him and its rear tires crushed him, according to the lawsuit.

Hart’s co-workers ran over, pounded on the truck and told Beane — who was unaware he had struck anyone — to stop the vehicle, which he did, the complaint added.

Winkelman stated in the complaint that Hart in no way contributed to the incident that killed him, as he “could neither see nor hear the approaching vehicle in time to escape.”

While a finding of contributory negligence would have barred any recovery under Maryland law, in wrongful-death cases the decedent is presumed to have acted in a way to save his or her own life.

“Contributory negligence was almost a non-issue in the case” due to that presumption, Winkelman said.

During the bench trial last month, Winkelman presented a trucking-incident investigator; a medical expert, to testify on Hart’s pre-impact fright and conscious pain and suffering; and an economist, to put a price on the damages. The defense’s only expert was an economist, Winkelman said.

Scrivener, after finding Diamond Waste and Beane liable for wrongful death, awarded the Harts $2,884,500, including $717,750 to Myrtle Hart and $184,875 to each child. The award also included $725,000 to the estate and compensatory damages of $750,000 in lost wages and $322,000 for household services.

Winkelman said his decision to have the case heard by a judge rather than a jury was based on his years of practice as a litigator.

“My experience suggests that a right-to-jury trial has been severely abrogated in the state of Maryland,” Winkelman said. “I don’t believe it is generally in my clients’ best interest.”

Winkelman pointed to cases in which judges have either struck down jury awards with judgments notwithstanding the verdict or reduced them with remittiturs.

“A win is nothing more than an advisory opinion” when rendered by a jury, Winkelman said; but when the case is heard by a judge, “your odds of losing on a JNOV are remote.”

HART V. DIAMOND WASTE SERVICES INC.

Court:

Montgomery County Circuit Court

Case No.:

342486V

Judge:

Louise G. Scrivener

Outcome:

Plaintiff’s Verdict

Dates:

Event: Dec. 19, 2009

Suit filed: Jan. 7, 2011

Trial: Feb. 21, 2012-Feb. 24, 2012

Bench Verdict: Feb. 24, 2012

Plaintiff’s Attorneys:

Michael J. Winkelman of McCarthy, Winkelman & Morrow LLP in Bowie.

Defendant’s Attorney:

Samuel J. DeBlasis II of DeCaro, Doran, Siciliano, Gallagher & DeBlasis LLP in Bowie.

Plaintiff’s Experts:

Brooks Rugemer, trucking-incident investigator; Dr. Ronald Ross, internal and emergency medicine; and Thomas Borzilleri, economist.

Defendants’ Expert:

Joel Morse, economist.

Count:

Wrongful death