Facts

Plaintiff Douglas Von Arx was injured on a construction project while operating a Ditch Witch trencher designed and manufactured by The Charles Machine Works and rented by Max Equipment Rental to the plaintiff's employer, Western States Engineering. One of the bolts holding a personnel restraint bar (which was cantilevered over the digging chain as a safety bar) came to be missing, and the bar was rotated up to perpendicular to the digging chain. The trencher was operated with the chain off of the sprocket, making it more loose, and digging teeth grabbed the end of the bar and pivoted it around the remaining bolt such that the far end struck the plaintiff operator in the head, causing brain damage.

PLAINTIFF'S CONTENTIONS:
The plaintiff contended that the product was defective in terms of how the restraint bar was attached to the brackets holding it over the digging chain, and that it had not been maintained in a safe condition.

DEFENDANT'S CONTENTIONS:
Defendants CMW and Max contended the trencher was properly designed, serviced, and maintained, was in good operating condition that the time it was rented, that the bolt was intentionally removed, that the restraint bar was intentionally elevated to a position perpendicular to the digging chain, and that the operator was negligent in operating the trencher in that condition and with the digging chain off the sprocket.

Settlement Discussions

The plaintiff demanded $1,950,000. The workers' compensation carrier, Harbor Specialty demanded $200,000. The defendants made C.C.P. Section 998 offers to the plaintiff totaling $100,000 and to the workers' compensation carrier, Harbor Specialty, of $30,000.

Injuries

Brain damage, residual difficulty in memory, personality changes, and multi-tasking. The plaintiff was off work for about six months post-accident. The worker's compensation lien was approximately $297,000. The plaintiff claimed medical expenses, unspecified future medical costs, and lost earnings.

Result

Defense. The defendants' motions for nonsuit after the plaintiff rested were granted. Cost bill is pending.