Jury net verdict $700 in liability case with expert estimated medical expenses of $285,000
Restaurant franchise obtains $700 net verdict in difficult liability case where Plaintiff’s future care expert estimated Plaintiff’s future medical expenses could exceed $285,000.
Attorneys Gregory Hirtzel & Benjamin Novak
Plaintiff sustained a non, or minimally, displaced fracture to her left elbow and soft tissue injuries when she fell in the lobby of the Defendant restaurant immediately upon stepping from a runner rug onto the tile floor. The location of Plaintiff’s fall was directly adjacent to a “CAUTION – WET FLOOR SIGN.” Her fall occurred less than 2 hours after the restaurant opened and the lobby video surveillance clearly depicted plaintiff’s fall, as well as a few other patrons before the incident appearing to have shaky footing on the floor due to apparent wetness, which the trial court admitted over objection. The statements that the floor was “slippery” at the time of Plaintiff’s fall by the two restaurant hostesses on duty at the time were also admitted over objection, although the court agreed that the statement by one of the hostesses that the floor was an “ice skating rink” should be excluded from evidence.
The former assistant manager of the restaurant who was on duty at the time testified that the floor was “slippery” on the day in question because of humid conditions inside the restaurant, which he said were common. Those conditions led to the placement of the “CAUTION…” sign on a regular basis at the location of Plaintiff’s fall, which Plaintiff’s counsel accused the restaurant of using as a “get out of jail free card.” Notably, the evidence established that in more than 500,000 patrons who visited the restaurant over four years, plaintiff was the only person to slip. Moreover, despite plaintiff’s contention that she never saw the “CAUTION…” sign, the defense relied on the evidence establishing that plaintiff should have seen the warning sign which she admitted, had she seen it, would have prompted a course of action that would have resulted in her avoiding the condition which she claimed was dangerous.
On damages, the undisputed evidence was that plaintiff permanently lost 5 degrees in range of motion in her arm because of her fracture (Plaintiff’s expert opined it was a loss of 15 degrees). Plaintiff’s expert testified that Plaintiff was in the early stages of developing post-traumatic arthritis. The court sustained the defense’s motion to exclude Plaintiff’s medical cost projection ($285,000). Plaintiff testified on direct that she had constant pain in her arm, but admitted on cross-examination that she didn’t have any pain, but rather an “icy-hot” sensation. The defense argued that whatever pain and loss of range-of-motion plaintiff experienced was attributable to the fact that she did not do any physical therapy, even though her treating physician recommended it three times.
The jury was reportedly hung on liability for several hours, but eventually returned a verdict allocating 30% comparative negligence against the Plaintiff and awarded her gross damages in the amount of $1,000. Post-trial motions on the sufficiency of the verdict are pending.