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Wednesday, Oct. 9, 2013 02:24 pm

Low prices, but be careful

Walmart sued over accidents

PHOTO BY BRUCE RUSHTON

 

Walmart needs to address accidents at the intersection of Sam’s Place and North Dirksen Parkway, near the Walmart store in northeast Springfield, says a lawyer who is suing the company for wrongful death.

“You have a duty, when your invitees are, again and again, involved in or causing accidents, to do something about it,” says Michael Viglione, a Chicago area attorney who last month sued Walmart for the second time in as many years. “This should be remedied.”

In 2012, Viglione sued the company on behalf of Bryan and Jennifer Mikus, a Springfield couple whose lives have never been the same since a collision with Porter Gwaltney on Oct. 22, 2011.

Bryan Mikus was northbound on Dirksen, aboard his new Ducati motorcycle. His wife was following in a car. Gwaltney, who was then 84, pulled out from Sam’s Place – he was trying to turn left onto southbound Dirksen from the road that serves as an entrance to the store intersection. There is no traffic light.

A witness later said in a deposition that Mikus was wearing a bright green vest and was decked out in riding boots and gloves, like someone fresh from a motorcycle safety course.

Mikus flew 15 or 20 feet from the impact with Gwaltney’s car and landed face-first on Dirksen Parkway. Besides facial fractures, he suffered a broken jaw, a broken right wrist, a lacerated spleen, a torn knee ligament and other injuries. A finger was amputated, and Mikus was in a coma for a number of weeks, his lawyer says.

“He came to in the hospital believing he had been taken hostage by terrorists,” Viglione says. “If he wasn’t wearing a helmet, he would have been dead.”

Viglione also represents the mother of Matthew McClain, who was 25 when he was killed last May at the very same intersection. Like Mikus, McClain, a Virden resident, was driving a motorcycle northbound on Dirksen. Like Gwaltney, William Davis was pulling out from Sam’s Place onto Dirksen. McClain hit the side of Davis’ SUV.

“That’s what makes this case frustrating: Bryan’s lawsuit was filed in advance of Matthew McClain’s accident,” says Viglione, who last month filed a wrongful death lawsuit against Walmart in the McClain case. “There will be another accident.”

As evidence, Viglione points to accident records. The Springfield Police Department has responded to more than 20 accidents at the intersection during the past 10 years. More than a dozen involved vehicles striking other vehicles after pulling onto Dirksen from Sam’s Place, which is a private roadway under the company’s control, according to Viglione. At least five of the vehicles struck were motorcycles, perhaps owing to the preponderance of motorcycle shops in the area – there are at least four on Dirksen within a mile of the intersection.

In defending the Mikus case, the company says that the safety of ingress and egress points on Dirksen is the state’s responsibility. A company spokesman said that Walmart worked with the state to create the entrance point at Sam’s Place and another just south of Sam’s Place that has a traffic light.

“We hired a professional engineering firm that worked closely with traffic engineers at the Illinois DOT to design both entrances to the store,” wrote Walmart spokesman Dan Fogleman in an email. “The intersection with a stop sign is controlled similarly to several other businesses along Dirksen. Ultimately, the state DOT determines how traffic can access the highway from private property.”

Gwaltney is also a defendant in the Mikus case, but Randall Mead, his lawyer, declined comment. In court papers, Mead says that Mikus was to blame for his injuries because he should have known that motorcycles are difficult to see and that motorcyclists are at risk of getting seriously hurt in accidents. In an unrelated accident, Gwaltney, now 86, was cited for failure to yield last month after pulling onto Peoria Road from Sandhill Road and colliding with a motorcyclist who was riding on Peoria Road.

Viglione said the judge in the Mikus lawsuit has rejected the biker-is-to-blame defense. As for Walmart’s defense that it’s the state’s responsibility, Viglione cites a 1996 ruling by the West Virginia Supreme Court that decided that Walmart could be sued by the husband of a woman who died in an accident after pulling out of a Walmart store onto a highway, where she was struck by another car.

“(The woman) was a business invitee of Walmart,” the West Virginia court found. “Accordingly, Walmart had a duty to maintain the premises in a reasonably safe condition. … A jury might conclude that Walmart had reason to know and appreciate the danger because of its in-house engineering capability and the history of collisions entering or leaving Walmart premises.”

In Springfield, Viglione says that the West Virginia case shows that Walmart knew about the dangers of store entrances on busy streets without traffic signals. He suggested that the company erect warning signs or signs prohibiting left-hand turns at Sam’s Place.

“Quite frankly, the fix is so simple,” Viglione said. “There are any number of options.”

Contact Bruce Rushton at brushton@illinoistimes.com.

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