Tom Berger and Maxim Genel recently defended a road construction company, and received a verdict finding no liability for the construction company in a claim filed by a bike rider who entered the construction zone.   The claim arose during construction of a two-lane road repair in southern Palm Beach County.  The road repair was complicated because of the proximity to other roads and the road crossed the intracoastal waterway.  As such the construction company was precluded from closing the road completely during repairs.  Instead, they had to utilize flagmen when one lane was closed.  On this day, a quickfill had been placed into a hole and the crew was waiting for it to dry before asphalt would be placed over top.

At this time, the plaintiff, an avid bike rider, entered the construction area, and went into the quickfill causing his bike to suddenly stop.  He was propelled onto the road causing a LeFort III fracture of his face.  He required extensive immediate medical care at a trauma hospital and would receive several more operations.  The plaintiff was permitted to show a video of the cutting of his scalp and flapping of the scalp to permit the repair of the fracture to his face.  There were many photos utilized to show the immediate aftermath of the injury and his healing.  The jury was visibly shocked by the photos, and they were both relevant and extremely prejudicial due to the sympathy that they evoked.  Damages were not the issue in the case.

Liability was the main issue in the trial.   The plaintiff theory of case was that the Maintenance of Traffic for the road was not correct, and that the construction company failed to comply with many fundamental safety requirements for a construction zone.  Further, plaintiff claimed that the flagman had given permission for him to ride through the construction zone.  This evidence was all circumstantial as the plaintiff did not have any memory of the accident or the events leading up to the accident and the flagman died before he could be deposed.  Despite the sympathy factors and the allegations of misfeasance, the jury believed the testimony of the employees and principals of the construction company and the expert opinions of defendant’s expert and returned a verdict of no liability.

About Thomas A. Berger

Tom Berger maintains a general practice that provides him with a broad range of legal insight into claims disputes involving Florida insurers and their insureds.

Tom is an experienced trial attorney who has tried in state court and he has mediated settlements from Fort Pierce to Key West, including the counties of St. Lucie, Martin, Palm Beach, Broward, Miami-Dade and Monroe. He has also argued appeals before the Florida Fourth District Court of Appeals.

His work in auto cases includes the defense of bodily injury and uninsured motorist claims. His experience with slip and fall injury cases includes a range of premises situations in retail, restaurant or other business properties. Product liability claims handled by Tom include power saws and other industrial or construction equipment.

In the area of construction defects, he represents general contractors and subcontractors in all aspects of construction from watertight issues to roofing, railings, doors and housing substructures. Many of the disputes he has handled involve high-end residential projects, including one property valued at $40 million. He has tried 4 construction cases to verdict.

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About Maxim Genel

Maxim Genel is an associate attorney at Boyd & Jenerette, P.A., practicing in the Boca Raton office. Mr. Genel practices in the firm’s Construction Law Group. Mr. Genel handles complex construction disputes involving construction defects, delay claims, contract disputes, arbitrations, and other complex construction related issues. Prior to joining Boyd & Jenerette P.A., Mr. Genel worked in property management where he gained firsthand experience managing construction related to major renovations of projects ranging from single-family homes to multi-story apartment complexes. Mr. Genel worked as a law clerk for Judge Carolyn E. Wright in New Jersey Superior Court, Essex County, giving him invaluable exposure to the inner workings of the Court systems.

Mr. Genel received his Bachelor of Arts and Sciences from Rutgers University and his Juris Doctor from Rutgers School of Law, where he made Deans List for his academic achievements and was awarded best closing argument in the Judith S. Kaye Arbitration Competition.

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