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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