Sarah (Zickert) Lisowe vs. J&M Displays, Inc.

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PRODUCT/NEGLIGENCE: $300,000

Injuries claimed: Mid abdomen puncture wound; 2nd degree burns to the left hand

Court: Sheboygan County Circuit Court

Case name: Sarah (Zickert) Lisowe vs. J&M Displays, Inc.

Case number: 08CV184

Judge: Edward L. Stengel. Mediator: Joseph D. McDevitt

Verdict & settlement: Settlement in favor of plaintiff

Plaintiff’s first demand: $640,000

Defendant’s first offer: $100,000

Award: $300,000

Special damages: Plaintiff’s past medical expenses: $34,903; Plaintiff’s past wage loss: $ 3,394; Plaintiff’s future medical expenses: $9,724; Plaintiff’s other past economic damages related to postponement of wedding: $1,825; Plaintiff’s future loss of earning capacity: None; Plaintiffs future losses (Other): $994 (future wage loss associated with future surgery)

Date of incident: June 30, 2006

Plaintiffs attorney (firm): Mark S. Young, Habush Habush & Rottier, SC

Defendants attorney (firm): James. J. Kriva, Kasdorf, Lewis & Swietlik, SC

Insurance carrier: Lexington Insurance Company

Plaintiffs expert witnesses: Charles Weeth, Pyrotechnics; Dr. Jeffrey A. Herold, plastic surgery;

Defendants expert witnesses: James J. Oetkin, pyrotechnics; Dr. Roger Schneider, PhD, Pyrotechnics, Explosives and Propellants; Scott Miller, Certified Fireworks Display Operator; Joe Massnaghetti, Certified Fireworks Display Operator

Plaintiff counsel’s summary of the facts: On June 30, 2006, at approximately 9:30 p.m., Sarah Zickert and her wedding party had just concluded a rehearsal dinner at Siebkens Resort in Elkhart Lake, Wisconsin and were walking from the resort to their vehicles. Sarah and her fiancé Matt Lisowe were to be married the next day. At this same time J&M Displays, Inc. began to launch a fireworks display on a barge set out on Elkhart Lake. Sarah Zickert was not at this location for the purpose of viewing the fireworks display and the wedding party had no plans to view the display that evening. They were simply walking to their cars at the end of the rehearsal dinner.

There was a sudden explosion on the fireworks barge and burning fireworks fragments and debris shot across the lake, over the tree line and into the Siebkens Resort area, landing in the alleyway of Siebkens Resort where Sarah Zickert was walking with members of her wedding party on her way to her vehicle. Some of the burning debris struck Sarah Zickert in the abdomen, burning a hole in her dress and puncturing and burning her abdomen. She also sustained 2nd burns to her left hand.

Plaintiff’s negligence theory: J&M Displays, Inc., was negligent in the manner in which is maintained and operated its pyrotechnic charges and negligent in failing to maintain a safe distance from the shore. Plaintiff also made a claim for strict liability regarding defective fireworks shells as the pyrotechnics were made specifically for the defendant according to the defendant’s specifications, bore the label of J&M Displays, Inc. and J&M Displays put the defective fireworks in the stream of commerce.

Defendant’s position: Defendant’s position was that J & M Display’s, Inc. was acting pursuant to a written contract with the Village of Elkhart Lake Fire Department to perform approved activities intended to support and promote legitimate public purposes of the Elkhart Lake Fire Department and was therefore subject to governmental immunity from suit and the damage limitations of $25,000 under Wis. Stat. § 893.80(3) apply. Defendant filed a motion for summary or declaratory judgment regarding the issue of governmental immunity, which the court denied. Defendants also denied strict liability arguing that they did not sell the defective shell, they only sold the fireworks show.

Pre-trial motions: Governmental Immunity; Strict Product Liability