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Risky Business: Risky renter relative

By Mary Ann Gormly

June 16, 2023

The request for the machine was placed over the phone. When the excavator was dropped off at the renter’s home, the employee of the rental store asked where the machine would be used. The renter showed him it would be used at the base of his driveway, which was bordered by stones on one side and without the stones on the opposite side. The employee told the renter that the mini excavator should not be operated on any such hills or grades, as it was dangerous, and the equipment could roll over and cause injury. The renter indicated that he understood, but also that his uncle would be using the machine and he was experienced in using heavy machinery and knew all the dangers associated with this type of equipment.

The next day the owner of the rental store got a call. The mini excavator had tipped over and crushed the uncle’s leg. The owner of the rental store stated that when his employee was dispatched to retrieve the mini excavator after the accident, he took several photographs of the equipment on its side and of the area where the equipment was being used.

The owner of the rental store called their insurance agent, and a claim was reported to their insurance company. An investigation was initiated into exactly what happened. During the investigation it was discovered that the man was a risk taker. He jumped off cliffs, skied down glaciers without a helmet and careened down mountain bike paths. It would come as no surprise that he also operated the excavator on a bank in a manner not recommended for safe use.

Eventually a suit was filed against the rental store, the machine’s manufacturer, and the homeowner’s insurance carrier. The mini excavator was placed in quarantine, and nothing was done with it or to it. It wasn’t rented, it wasn’t repaired — it was as if it did not exist. The machine was brought into their warehouse and placed in a corner to keep it out of the elements and out of the way. A tarp was placed over the machine. This was necessary to prevent something called spoliation of evidence. This arises when one side suspects or uncovers that the other party has deliberately, negligently or accidentally destroyed evidence relevant to the case. If the machine is quarantined, then it is evident it has not been tampered with.

The attorney for the injured man agreed that his client does have some responsibility for using the machine in a manner that was unsafe. He agreed that an excavator should not be used on sloped surfaces, and it would have been more prudent for his client to
have kept the equipment on the paved driveway and use the excavation bucket over on the work area. He does, however, believe that the rental store erred in not providing written instructions on the safe operation of the machine.

Exactly that was brought up several months later by the mediator when the case went to mediation to avoid a jury trial in a very liberal venue.

The initial demand from the injured man’s attorney was more than $3 million dollars. The man’s crushed leg eventually required amputation below his knee so it was a very serious injury.

The manufacturer of the machine stood by their product and alleged that the accident was the user’s own fault, but did contribute a nominal amount as did the insurance company for the homeowner.

That left the insurance company for the rental store as the main negotiator. After much discussion and a mediation that lasted all day, the injured man and his attorney came down in their demand by nearly $2 million and agreed to a settlement at just over $1.1 million globally. They had to agree that the injured man certainly had a good amount of comparative negligence since he used the machine in an unsafe manner.

Mary Ann Gormly is a loss analyst for ARA Insurance, Overland Park, Kan. For more information, call 800-821-6580 or visit