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‘Bear hug’ of customer is within scope of employment – $1,200,000 Verdict

The sole cause of action was for vicarious liability of Lowe’s for its employee’s negligence in the “friendly bear-hugging” of a repeat customer at Lowe’s. Plaintiff is a 59-year-old Vietnamese contractor who operates his own home-improvement company.

At the time of the incident at the store in Chantilly, plaintiff had been to the store more than 100 times. Employees knew and liked him, and he was friendly with them as well.

On May 4, 2009, plaintiff was speaking with a Lowe’s employee in the lumber aisle next to steel shelving for lumber. Another employee at the front of the store saw the plaintiff about 20 feet away and facing the back of the store. He decided to approach the plaintiff from behind, and began “fast-walking” toward him. The employee was in his 20’s, over 6 feet tall and weighed more than 300 pounds. Plaintiff is 5’3’’ and weighs 130 pounds. The employee bear-hugged the plaintiff from behind, catapulting him into the steel shelving for lumber. He then fell on top of the plaintiff, who experienced immediate, whole-body numbness.

The testimony was uncontradicted that Lowe’s required every employee to approach and “greet” every customer (emphasized to the degree that Lowe’s high-level managers and an outside firm conducted periodic surveillance of employees to insure compliance) and that this was the “No. 1 job” of every customer service associate. Through a deposition of a corporate designee on topics that included the scope of employment, Lowe’s admitted that what this employee was doing at the time of this incident was “greeting the customer.”

On the morning after this incident, the plaintiff was almost paralyzed, barely able to move his arms or legs.
An MRI showed an obvious white spot in the spinal cord and edema (swelling from a recent event). Plaintiff underwent successful emergency surgery to decompress his spinal cord three days after the incident. He recovered the ability to move his limbs; physical and occupational therapy further improved his recovery.
The defense neurosurgeon found that before the incident, plaintiff had asymptomatic compression of his spinal cord, a very narrow spinal canal (stenosis) and a degenerated spine, but that, as all three testifying doctors concluded, the sudden trauma of this incident caused the partial spinal-cord injury.

The main damages at issue at trial were plaintiff’s current condition. Lowe’s conducted surveillance and videotaping of plaintiff over two days in March 2011. Videotaping showed plaintiff following doctors’ orders in supervising others in his home-improvement business but no longer doing heavy labor himself.

Lowe’s medical expert concluded that plaintiff’s condition is stable with only minor residuals, and that his prognosis is good. Plaintiff’s medical expert, and lay witnesses, testified that plaintiff’s condition is worsening, and the expert testified that plaintiff’s prognosis is poor.

[11-T-075]

Type of action: Personal injury
Injuries alleged: Plaintiff with pre-existing narrowing of spinal canal (stenosis) suffered partial spinal-cord injury known as Central Cord Syndrome
Name of case: Doan v. Lowe’s Home Centers Inc
Court: Fairfax Circuit Court
Case no.: 2009-13498
Tried before: Jury
Judge: Jonathan C. Thacher
Date: May 27, 2011
Special damages: $67,000 past medical expenses; no past or future lost earnings or loss of earning capacity
Demand: First demand – $2,400,000; last demand – $1,800,000
Offer: First offer – $200,000; last offer – $525,000
Verdict or settlement: Verdict
Amount: $1,200,000
Attorney for plaintiff: Douglas B. Wessel, Reston
Attorneys for defendant: Cameron Beck and Joseph Martin, Richmond; Frank Prior, Fairfax
Plaintiff’s experts: Robert Gerwin, meurology, Bethesda, Md.; Steve Shedlin, vocational rehabilitation, Rockville, Md.
Defendant’s expert: Donald Hope, neurosurgery, Fairfax

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