Shot janitor gets mixed verdict against apartment management

A St. Louis jury awarded $800,000 in damages to an apartment-complex janitor who was shot in the back by a tenant who mistook him for a burglar.

Rafael D. Johnson, 32, sued McCormack Baron Management Inc. after the October 2015 shooting at the Washington Apartments that left him hospitalized for a month.

“They told him he’d probably be paralyzed,” said plaintiff’s lawyer Douglas Ponder, whose client instead has largely recovered and is able to work as a mechanic.

Johnson was distributing a monthly tenant newsletter to each apartment when he was shot by a resident whose third-floor unit had been recently burglarized. The suit faulted the defendant for failing to outfit the temporary worker with a uniform, name tag or other form of identification.

After deliberating for three hours at the conclusion of a two-day trial, the jury sided with the plaintiff but held him 60 percent responsible, reducing its $2 million award to $800,000.  

The comparative fault revolved around whether Johnson entered the resident’s apartment, and in what manner, even after the theft of $800 weeks earlier, the tenant/shooter left his door unlocked and open. 

Ponder said his client crossed the door’s threshold “maybe two steps in and then threw the flyer on a counter.” No criminal charges were filed against the tenant.

Defense lawyer Zach Vaughn of Wiedner McAuliffe said his client plans to appeal, consistent with their argument that under Missouri Workers’ Compensation Act, Johnson met the criteria for a statutory employee, for which it provided workers comp, and that it is thus entitled to the exclusive remedy defense. 

“The law is pretty clear in Missouri,” he said. “We should have prevailed at summary judgment. There shouldn’t even have been a jury trial.”

A post-trial motion for judgment notwithstanding the verdict is pending.

Ponder argued the exclusive remedy defense does not apply because the policy only covers direct employees and not cover indirect, or statutory, employees. 

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$2 million verdict

Premises liability

Allocation of Fault: 60 percent to plaintiff, 40 percent to defendant. Net judgment of $800,000

Venue: St. Louis Circuit Court

Case Number/Date: 1922-CC11895/May 18, 2022

Judge: Michael Mullen

First pretrial demand: $3,000,000

First pretrial offer: $5,000

Last pretrial demand: $2,995,000

Last pretrial offer: none

Caption: Raphael D. Johnson v. McCormack Baron Management Inc.

Plaintiff’s Attorneys: Douglas Ponder and Jaclyn Zimmermann, Ponder Zimmermann, St. Louis

Defendant’s Attorneys: C. Zachary Vaughn and Patrick Cody, Wiedner McAuliffe, St. Louis