Murchison & Cumming LLP

Defense Verdict in Premises Liability Case

June 21, 2017

A Long Beach jury returned a verdict in favor of the defendant, a local restaurant from Avalon, California. Murchison & Cumming Partner Lisa D. Angelo represented the restaurant in a five-day trial where plaintiff asked the jury to award her $5 million dollars.

The plaintiff fell upon a curb on the corner of Third St. and Catalina Ave. in the City of Avalon. Video surveillance from the defendant's restaurant captured the fall. As a result of her fall, the plaintiff claimed she suffered a sciatic nerve injury to her back that required her to undergo physical therapy and two epidural injections. Her future medical damages claims included a spinal cord stimulator along with a battery pack that had to be replaced every five to seven years. According to the plaintiff's medical expert, the cost of the stimulator and battery pack alone was $350,000.

At trial, the plaintiff testified that she fell as a result of "slime and sludge" that came from a roof drain pipe attached to defendant's restaurant. Evidence at trial showed that defendant's air conditioning unit, located on the restaurant's roof, leaked water condensation that traveled from the unit, across the roof, down a roof drain and onto the City of Avalon's sidewalk. The restaurant's owner testified that he routinely changes the filter on the air conditioning unit and that it was properly maintained at all times.

The plaintiff's liability expert, Brad Avrit, testified that the air conditioner's water condensation picked up "contaminants" as it traveled across the roof and down the drain pipe to the City sidewalk. Mr. Avrit further opined that the "contaminants," while resting on the City sidewalk, turned into an liquid substance that caused plaintiff to slip and fall. The only evidence the plaintiff produced to support her expert's "contamination" theory was her own testimony, the video surveillance and a nighttime photo that she believed showed "slime and sludge" on the concrete.

Defense liability expert, Ned Wolfe, testified that the plaintiff fell as the result of a misstep. Having turned the video surveillance into still-shots, Mr. Wolfe effectively showed the jury that the plaintiff's torso pitched forward at the time of her fall rather than backwards. These "body mechanics" demonstrate a "misstep" off the curb and not a slip upon slime, sludge or any other "contaminant."

Both liability experts agreed: water on concrete does not create a slippery or dangerous condition.

The jury returned a 11-1 defense verdict in less than two hours after a five day jury trial. The jury answered "No" to the first question on the special verdict form as to whether Defendant was negligent. The case was tried before Judge Vicencia in the Long Beach Superior Court.

 

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