Rob Laney and Michael Young Win Defense Verdict in Premises Liability Lawsuit

May 13, 2015

RRD Partner Rob Laney and Associate Michael Young obtained a defense verdict after a four-day jury trial on behalf of a small family-style restaurant in a premises liability case where the plaintiff’s initial pre-trial demand was $1.25 million and the plaintiff asked the jury for an award in excess of $1.5 million.  The plaintiff turned down a pre-trial offer of $350,000, opting to have the jury decide the case.

The plaintiff was an 87 year-old woman who tripped and fell on a raised lip at the front entrance of the restaurant.  The plaintiff had entered the restaurant a few minutes earlier with her husband, but had to return to their car to retrieve a new oxygen canister for him when he noticed that his was running low.  She tripped and fell while she was returning to the restaurant with the spare oxygen canister.

The plaintiff claimed that the change in elevation from the parking lot to the restaurant vestibule was 2½”, and that she caught her right foot on the lip as she tried to enter the restaurant.  Her fall resulted in a severely fractured right hip, a badly broken and dislocated right shoulder and a torn right rotator cuff.  The plaintiff had a partial hip replacement two days later; unfortunately, she was not a viable candidate for surgery to repair the damage to her right shoulder because of her age and other significant health issues.  The right shoulder fracture healed poorly, with the result that the plaintiff was left with very little use of it.  The plaintiff’s total medical specials were in excess of $175,000.  In addition, the plaintiff pursued a loss of consortium claim on behalf of her late husband, who passed away two months after the fall, while the plaintiff was still in a nursing home.  At trial, the plaintiff presented a great deal of testimony about her role as her husband’s primary caregiver and his depression and loneliness during his last two months of life while his wife was recuperating.

During the trial, the plaintiff presented the testimony of two expert witnesses on liability.  One was an engineer, and the other an expert in building and safety codes.  Both opined that the change in elevation at the entry to the restaurant was a dangerous condition that was in violation of the state building code, the state fire code, the Americans With Disabilities Act (“ADA”), and ANSI Standards.  RRD successfully moved to preclude any reference to the ADA, on the basis that it is neither a building nor a safety code but, instead, civil rights litigation that is meant to ensure that disabled individuals are not discriminated against in connection with their ability to access and enjoy places of public accommodation.  In addition, although both of the plaintiff’s experts took photographs of the change in elevation in the doorway, neither of them took a photograph of it with a ruler or other measuring device in the frame.  As it turned out, both of the experts measured the change in elevation incorrectly – it was 1½”, not the 2½” claimed.  In addition, RRD was able to get both experts to concede that the building code did not technically apply because the building pre-dated the code.  Both experts also conceded that the fire code was also not technically applicable, because it is concerned with ensuring that premises are in a condition such that occupants of a building can safely flee it during a fire, rather than enter it for a meal.  Finally, RRD demonstrated that the plaintiff, who had been to the restaurant 250 times by her own estimation, knew about the change in elevation at the entry and was, in fact, looking at it when she tripped.

As mentioned, the plaintiff turned down a $350,000 settlement offer pre-trial.  The lowest demand was $650,000, which was presented after the second day of evidence.  In his closing argument, the plaintiff’s counsel asked the jury for an award of $150,000 for the plaintiff’s injuries and asked for an unspecified additional amount for the plaintiff’s husband’s loss of consortium.  The jury deliberated 90 minutes before returning a unanimous verdict in favor of the defendant, finding that it was not negligent in any of the numerous ways alleged by the plaintiff.