Ricky Bottensek, 44, was working as a landscaper for his brother’s company, which turned out to be a third-party defendant in this case, Bottensek Inc. The job site was in Rochelle, Ill. On Feb. 28, 2008, the defendant, Fischer Excavating, was digging a trench for the installation of a stilt fence. The Fischer employee and defendant, Rod Hagemann, was operating a rented trenching machine, cutting a trench in the frozen ground.
Bottensek was working behind the machine, holding a fence stake steady while his co-worker waited to strike the stake with a sledgehammer to drive it into the trenched ground, when Hagemann lost control of the trenching machine causing the trencher and attached cutting chain to shift backwards. The cutting chain entangled one of Bottensek’s legs and pulled them partially through the rotating chain causing severe injuries to both of his legs.
He sustained an open fracture of the right femur, closed fractures of the left distal tibia and fibula with dislocation and a large complex degloving wound to his left lower leg, requiring multiple surgeries and probable future ankle fusion surgery.
He also suffered chronic pain, fatigue, limitation of activities, anxiety, depression and sleep disorders as a result of this incident and his injuries. Bottensek is disabled because of his physical and psychological conditions.
In the lawsuit that was brought by Bottensek, he asserted that Hagemann and Fischer Excavating were at fault for their choosing not to keep the trencher under proper control, choosing not to lift the cutting chain from the ground to stop the rearward shift and permitting Bottensek to work too close to the rear of the machine.
Bottensek further alleged that Fischer Excavation failed to properly train its operating engineer, Hagemann, and to safely operate the trencher in frozen ground conditions.
The defendants argued that this was an unforeseeable, freak accident. It was also maintained that Hagemann shut the trencher down very quickly, that Bottensek was negligent in working too close to the rear of the moving machinery with his foot in the trench and his back to the cutting chain and that Bottensek’s employer, Bottensek Inc., was at fault for choosing not to properly train Ricky Bottensek.
Fischer Excavation had initially claimed that Hagemann was a borrowed employee, but there was a summary finding to the contrary, and the issue was removed from the jury’s consideration.
The defendant’s attorney noted that Hagemann was operating the trencher for the subcontractor that day because the union would not permit the subcontractor’s non-union operator to do so. The jury was given modified Illinois Pattern Jury Instructions (IPI) 105 series instructions as if for professional negligence. It was reported that post-trial motions were denied.
The jury’s verdict of $3,988,050 was reduced by 10% to $3,589,245 made up of the following damages versus Fischer Excavation and Rod Hagemann on Count I for vicarious liability; $3,988,050 versus Fischer Excavating on Count II, which was just against Fischer Excavation on a direct action with no contributory negligence made of these damages:
• $1 million for past and future loss of normal life;
• $1 million for past and future pain and suffering;
• $500,000 for past and future emotional distress;
• $200,000 for disfigurement;
• $528,475 for past and future medical expenses; and
• $759,575 for past and future loss of earnings/benefits.
The third-party action against the third-party defendant Bottensek Inc. was a not guilty verdict by the jury.
Count I was the only count of the complaint that had a reduction of 10% for vicarious liability. The attorney representing Ricky Bottensek was Frank A. Perrecone. Before trial a demand of $3,500,000 was made. The jury was asked to return a verdict of $3,988,050, which they did. There was no offer made by the defendants in this case.
Ricky Bottensek v. Fischer Excavating, Inc., Rod Hagemann v. Bottensek, Inc., No. 09 L 6 (Ogle County, Ill.).
Kreisman Law Offices has been handling construction accident cases, work injury cases, automobile and truck accidents for individuals and families who have been harmed, injured or died as a result of the carelessness or negligence of another for more than 38 years in and around Chicago, Cook County and its surrounding areas, including Willow Springs, Wilmette, Rolling Meadows, Oak Park, Oak Lawn, Morton Grove, Matteson, Richton Park, Schiller Park and Alsip, Ill.
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