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Johnson County jury returned a $1.2 million verdict for a mentally challenged laborer who fell from a ladder while trimming a tree. The verdict followed a refusal by the defendant's insurance carrier to pay its $100,000.00 policy limits early in the case.
In September 2004, the defendant homeowner was under pressure from the City of Shawnee to cut low-hanging branches in front of his house. Rather than pay a $600 bid to a professional service, the defendant hired Richard Payne, a 33-year-old family friend with mental disabilities, for $8 an hour to help trim trees.
Mr. Payne had virtually no experience trimming trees, but the defendant did. The defendant leaned an extension ladder against the tree limb, and Mr. Payne climbed the ladder to cut branches. After extending the ladder to 20 feet to clear a high branch by mere inches, Mr. Payne expressed concern about the ladder's placement. It was leaning against the branch they intended to cut, and it was placed in the street at a steep incline. The defendant assured Mr. Payne that the placement was fine. He said he would climb it himself if was able.
Mr. Payne climbed the ladder and began to cut. The end of the branch began to drop. When it dropped low enough, the defendant grabbed the branch and jerked it down, causing it to break at the cut. The remaining portion of the branch sprung up and cleared the top of the ladder, which then twisted and fell. Mr. Payne struggled to hang on to the branch but fell to the pavement. He fractured both wrists and tore his right rotator cuff, resulting in a frozen shoulder and a fixed claw deformity of his right hand.
Prior to the lawsuit, the defendant's home owner's insurance company, State Farm, refused a policy limit demand of $100,000.00. After discovery began, defense counsel offered to settle the claim for $100,000.00. Recognizing that insurers cannot normally cure bad faith under Kansas law, Shamberg, Johnson & Bergman, Chtd., sought a consent judgment and assignment of a bad faith claim from the defendant. The defendant refused, despite facing exposure well in excess of his policy limits. Shortly before trial, counsel learned that State Farm had agreed to indemnify the defendant for an excess judgment, in essence rewriting the policy without limits.
Victor Bergman and Shannon Kempf tried the case, using an expert arborist to explain how "reaction wood" caused the severed branch to thrust upward, springing the limb above the ladder and shaking Mr. Payne so violently that he could not hang on. Because the defendant had not provided safety gear, Mr. Payne was at nature's mercy. Plaintiff argued that the defendant should have hired a professional tree-trimming service rather than take advantage of Mr. Payne.
At the end of the five-day trial, the jury awarded $600,000 for medical expenses, $100,00 for lost wages and $500,000 for pain and suffering. The jury assigned 51 percent of the fault to the defendant and 49 percent to Mr. Payne.
