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Premises Liability

      Kevin Campbell (Associate/Los Angeles Office) In March of 2009, a Los Angeles County Superior Courthouse jury returned a defense verdict in favor of a national grocery store.  In this lawsuit, the plaintiff brought a premises liability claim as a result of the injuries he sustained while shopping within the defendant store.  The plaintiff tripped over an object placed parallel to the baseboard of a display case, causing him to fall forward onto the floor.  The plaintiff sustained injuries to his right hand when the glass jar he was carrying at the time shattered upon impact.  Arguing that the cleaning crew on duty at the time of the incident was responsible for the plaintiff's injuries, Mr. Campbell persuaded the jury to assign liability to the cleaning company. 

      Kevin Campbell (Associate/Los Angeles Office) obtained yet another defense verdict for the above mentioned grocery store in August of 2009.  This lawsuit involved a similar premises liability claim where the plaintiff tripped over a potted plant during his attempt to exit the store.  This fall resulted in a meniscus tear.  Mr. Campbell successfully argued that the planter was in an open and obvious condition and that the store was not liable for the injury.

Laura J. Barns (Junior Partner/Irvine Office) recently prevailed on a motion for summary judgment in a premises liability matter in Los Angeles Superior Court. Plaintiff was seriously injured when he was hit by a vehicle that had backed over a low wall upon which the plaintiff was sitting. Plaintiff contended that the wall was partially on the property of the defendant and that the property owner had a duty to repair the wall and to warn persons waiting for buses at a stop adjacent to his property of the dangerous condition of the wall. Defendant contended there was no duty and it did not breach a duty to plaintiff. Summary judgment was granted in favor of the homeowner.

December 2008, Frank D'Oro (Senior Partner/Los Angeles Office). Plaintiff alleged she was injured when several boxes of juice fell on her. The boxes weighing 25-35 lbs each fell from a merchandising cart that was being pushed by a store employee. The merchandising cart was missing a wheel, which caused it to be unbalanced. The defense admitted liability prior to trial and made a statutory offer to compromise in the amount of $30,000.00.

Plaintiff claimed she sustained a torn medial meniscus and she underwent surgery. She also alleged she was a candidate for a partial knee replacement. Past medical specials were $53,000.00. Future medical specials were estimated to be $60,000.00.

The defense argued that plaintiff's initial complaints to her primary care physician were to her leg, shin, and hip, not to her knee. The defense contended that plaintiff had minor degenerative changes within her knee, but no medial meniscus tear.

The defense argued that all of plaintiff's treatment was directed by her attorneys and a factoring company utilized by her attorneys to finance her treatment. The defense argued that the involvement of the factoring company created an incentive by the medical providers to perform unnecessary medical treatment. The factoring company became involved in plaintiff's care after she was discharged from chiropractic care. The defense argued that plaintiff's orthopedic surgeon had been referred "qualified patients" from the factoring company in the past and knew that the factoring company had a relationship with the surgery center. The factoring company ultimately purchased plaintiff's surgery center bill of $21,000 from the surgery center for $3,000. The defense argued that all of the surgical procedures performed were unnecessary and that some of the procedures were not performed at all.

The jury returned a $14,000 verdict for plaintiff, awarding her nothing for the surgery. The verdict was reduced to $1,796.04 after accounting for defense costs based on the defense pre-trial statutory offer.

June 2008, Frank D'Oro (Senior Partner/Los Angeles Office). Plaintiff slipped and fell on grapes in the produce department, landing on her left knee. Plaintiff's liability expert contended that the standard of care in the industry required placement of mats adjacent to grape displays. The defense impeached plaintiff's expert by introducing photographs of grape displays without mats at multiple other local markets. Additionally, the defense offered testimony from store employees and an independent witness indicating that plaintiff had dropped the grapes on the ground herself.

Plaintiff alleged that she suffered a Grade II tear to her meniscus as a result of the fall. She contended that she required surgery to repair the tear. The defense argued that all of plaintiff's medical treatment was motivated by secondary gain and that the Grade II findings on her two MRI studies were degenerative and non-symptomatic.

Plaintiff's medical specials were $17,832.00. She also claimed $13,000.00 in lost earnings. Plaintiff demanded $300,000.00. The defense made a statutory offer in the amount $2,500.00, which was rejected by plaintiff prior to trial. The jury returned a defense verdict (12-0).

May of 2008, Thomas Ely, Senior Partner, Irvine Office was awarded a verdict in favor of the defense after a mere 6 days of trial.

The case arose out of a house fire that began at the defendant's home two years earlier. Defendant arrived home from work at about 9:30 p.m., opened the garage door, and was surprised to find that a fire had started in the garage. He quickly went into the house to warn his wife and two daughters, who had no knowledge of the fire, and then tried to put the flames out with a garden hose. Despite his efforts, the fire spread rapidly. His wife attempted to call 911 in vain, the telephone did not work so the family evacuated the home. A neighbor called 911 and the Fire department arrived within 5 minutes. By then the fire had engulfed the front of the defendant's house and had spread to an adjoining house. A third house was damaged by smoke before the fire department was able to contain the fire.

The fire investigator later determined that the fire was caused by potting soil that self heated to the extent that it ignited nearby combustibles. He ruled out all other causes of the fire. The plaintiffs were insurance companies that were seeking reimbursement for the amounts paid to the adjoining home owners, for amounts totaling over $440,000.

Plaintiffs contended that spontaneous combustion of potting soil was impossible, and that the fire was caused by the negligence of the homeowner defendants. Plaintiffs also argued that the family was negligent by storing an excessive amount of combustibles in the garage that caused the fire to spread, and by failing to promptly call 911.

Defense argued that plaintiff's failed to prove that defendant's were negligent and that the mere fact that the fire occurred was insufficient to raise an inference of negligence on the part of defendants.

March 2008, Frank D'Oro (Senior Partner/Los Angeles Office). Plaintiff slipped and fell on water on the floor in soda aisle while holding her minor son, landing on her right hand and hip. Plaintiff contended that the sweep sheet was unreliable because it was undated and there were references on the sheet to different departments in the store but there is no pattern for when those particular departments are cleaned. Plaintiff also argued that the janitor on duty had been in the aisle where the accident happened approximately five minutes earlier and cleaned up a spill of water. At trial the janitor testified that when he had previously been in the aisle there was nothing there and he only found the water as well as a juice spill after plaintiff fell. Plaintiff argued that the janitor had been in the aisle minutes before and had obviously missed the water that plaintiff slipped in. The defense argued that the sweep sheet was properly filled out and defendant did not have actual or constructive notice of the water on the floor.

Plaintiff testified that when she fell she was holding her minor son and that she grabbed her shopping cart with her right arm wrenching her right shoulder. She delayed treatment for approximately two weeks and when the market refused to authorize medical treatment for her, she retained counsel and was referred to a chiropractor at BKP Chiropractic. Plaintiff alleged a variety of soft tissue injuries as a result of the incident. The defense argued that the fact that plaintiff did not know where she had received treatment, the name of the chiropractor or how long she had received treatment were all indicators that her complaints and treatment were unrelated to any real injury.

Plaintiff served a statutory offer to compromise for $8,000. The defense never made any offers other than a statutory offer to compromise for a dismissal in exchange for a waiver of costs.

The jury returned a defense verdict and found no negligence on the part of the store.

February 2008, Frank D'Oro (Senior Partner/Los Angeles Office). Plaintiff slipped and fell on water in the freezer aisle of the store. An half empty container of water was found in a cooler adjacent to the scene. The bottle was determined to be the likely source of the water by store personnel investigating the scene. A floor inspection sheet indicated there had been an inspection of the area within one half hour of the accident. Plaintiff argued that the sweep sheet was invalid, because the author of the entry was not available to testify. The defense offered the testimony of the assistant manager who started work and completed a walk through inspection of the area approximately 5 minutes prior to the accident.

Plaintiff alleged soft tissue injuries and internal derangement of her knee, which she contended required surgery. Plaintiff's past medical specials were $10,214.00. Future medical specials were estimated to be $32,000.00. The defense argued that there was no clinical connection between the alleged incident and plaintiff's subjective complaints, based on a normal MRI and the medical history developed from plaintiff's medical records. Plaintiff demanded $39,999.99 pre-trial. The defense offered $2,000.00, which plaintiff rejected.

The jury returned a defense verdict (11-1). The jury found no negligence on the part of the store.

December 2007, Frank D'Oro (Senior Partner/Los Angeles Office). Plaintiff slipped and fell in a puddle of grease on floor in the bakery department. The defense admitted liability for the incident. Plaintiff was 7.5 months pregnant at the time. She alleged that she fell to the ground causing complications with her labor and delivery, and that she suffered chronic soft tissue injury to her mid and low back as a result of the fall.

Defendant contended that plaintiff slipped, but did not fall. Plaintiff did not receive prenatal care following the accident and her medical records did not correlate with her claim of pregnancy complications. The defense argued that all of plaintiff's treatment with her attorney-referred medical providers was unreasonable and not medically necessary.

Defendant admitted liability, however the jury returned a defense verdict after finding that defendant's negligence was not a "substantial factor" in causing harm to plaintiff.

Mark J. Giannamore (Junior Partner/Los Angeles Office) Small claims appeal; Division 4 Culver City; resulted in a reversal of the small claims court verdict and in favor of defendant.

March 2007, Frank D'Oro (Senior Partner/Los Angeles Office). Plaintiff and her family attended a 4th of July fireworks display sponsored by the City of Claremont at Pomona College. Plaintiff entered the event on a concrete walkway and took a "short cut" to the athletic field by traveling over a grassy slope where she slipped and fell as a result of tripping on a drainage grate.

Plaintiff alleged that the City's plan was to keep attendees on the concrete path and not let them on the slope. Plaintiff argued that allowing people to go down the slope as part of a crowd created a dangerous condition. The following year the slope area was roped off. Plaintiff suffered a displaced fracture of her elbow, a stress fracture to one ankle and a sprain to the other. She also alleged a knee injury. Plaintiff's elbow required multiple surgeries due to complications with her treatment making plaintiff a candidate for future total elbow replacement. Plaintiff's total medical specials were $89,000.00. Future specials were estimated at $50,000.00. Plaintiff's demand was in excess of $400,000.00.

The defense argued that plaintiff and her family chose to take the "short cut" and that the sloped grassy area where plaintiff fell did not constitute a "dangerous condition" of public property (i.e. the grassy area did not constitute a “substantial risk of injury when used with due care”). The jury agreed with the defense position and returned a defense verdict.

March 2007, Frank D'Oro (Senior Partner/Los Angeles Office). Lawsuit brought by two female plaintiffs. Plaintiff Almanza, a sixty-four year old female, alleged that she tripped and fell over a six-wheel cart that had been placed behind her by store personnel to restock a display. Her caregiver, plaintiff Navarro alleged that she was injured in the process of helping plaintiff Almanza up off the floor.

The defense argued that the accident did not happened as alleged by the two plaintiffs and that plaintiff Navarro was the “architect” of an elaborate fraud. Plaintiff Almanza slipped/stumbled on her way from the produce department to the checkout line when plaintiff Navarro called plaintiff Almanza to “hurry” in response to a newly opened checkstand. The merchandising cart was not involved. Plaintiff Navarro never picked up plaintiff Almanza and plaintiff Navarro could not have been injured. Plaintiff Almanza made no complaint of shoulder pain to the paramedics, or in the emergency room. The defense pointed out that plaintiff’s Almanza’s first complaint of shoulder pain was not until one month post-accident when she was taken to her doctor by plaintiff Navarro.

The jury did not find either plaintiff credible and rendered its defense verdict, 12-0.

February 2007, Frank D'Oro (Senior Partner/Los Angeles Office) Plaintiff slipped and fell on chicken grease in front of a rotisserie chicken display. The defense admitted liability. Plaintiff alleged that the incident "aggravated" her pre-existing arthritis and a torn meniscus, which required surgery. The surgery resulted in a blood clot, plaintiff being hospitalized on multiple occasions and permanent damage to plaintiff's lungs requiring lifetime medical monitoring. Plaintiff never made a demand less than $1 million. Prior to trial the defense made a statutory Code of Civil Procedure §998 offer to compromise in the amount of $25,000.00.

At trial, the defense argued that although plaintiff complained of knee pain while at the store, when she was seen two days post-accident by her primary care doctor, she did not complain of knee pain. She made no further complaints of knee pain until four months later. At that time, she reported she had been working extended hours involving extensive walking. The defense argued that plaintiff aggravated her pre existing arthritis by working extra hours and that MRI and surgical films confirmed no new pathology to plaintiff's knee.

The jury made a finding of "no causation" with respect to the alleged knee injury and returned a verdict for plaintiff below the defense statutory offer entitling the defense to recovery of costs.

February 2007, Frank D'Oro (Senior Partner/Los Angeles Office). Plaintiff, a 63-year-old female, slipped and fell on a piece of melted chocolate near the liquor department. As a result of her fall, plaintiff broke her shoulder requiring surgical repair.

Plaintiff argued that the chocolate was the residue from chocolate chip cookies being given out at the bakery department approximately 15-20’ from the site of the accident. Plaintiff argued that the inspections performed by store personnel were inadequate and that more frequent inspections were required in the area around the bakery. Plaintiff suffered a fractured shoulder with the humerus broken in four different places. Surgical repair with a plate and screws was required. During the initial operation the doctor left a “jig” on the surgical plate and plaintiff was required to undergo a second operation to remove the jig.

The defense argued that plaintiff had failed to present evidence that the bakery department was unreasonably dangerous requiring more frequent inspections. Further, there was no evidence that store personnel were negligent in inspecting the premises on the day of the incident. The defense argued that the smear of chocolate found after the accident was in a different location than where plaintiff had fallen and therefore, was unrelated to the accident. Plaintiff’s counsel requested an award of $335,000 in general damages based on roughly $40,000 in special damages. The jury returned a defense verdict, finding no negligence on the part of the store.

May 2006, Frank D'Oro (Senior Partner/Los Angeles Office). Plaintiff alleged he was injured when security guards knocked him down as they were chasing a shoplifter that had escaped after being taken into custody. Plaintiff’s medical expert testified that the trauma in the subject incident aggravated a degenerative condition in plaintiff’s knee and that plaintiff was a candidate for a total knee replacement as a result of the incident. Plaintiff testified at deposition that he was unable to drive and used a cane at all times. Plaintiff’s counsel asked for an award of $450,000.

The defense argued that plaintiff was a fraud and not involved in the incident. Plaintiff claimed he was knocked down after the police came to the store, but there were no witnesses who saw him get hit. The defense also argued that the opinions offered by plaintiff's liability expert were tantamount to "Monday morning quarterbacking." The defense offered sub rosa video which depicted plaintiff walking without a cane and driving his car.

On cross-examination of plaintiff’s medical expert, the defense presented social security records evidencing that plaintiff suffered from severe degenerative arthritis as far back as 1999. Plaintiff's medical expert admitted that his opinion was basd on the history given to him by plaintiff. After a review of the Social Security Administration records, the medical expert had to admit that plaintiff was at best a poor historian, if not an inaccurate one.

The jury did not believe that plaintiff suffered a new injury to his knee and returned a defense verdict.

      Tom Ely (Senior Partner/Los Angeles).  Olivarez v. World Kitchen.  On December 17, 2005, at about 6:00 p.m., Plaintiff's Dralene Olvarez and Cynthia Lopez were shopping at the Citadel Mall in Los Angeles. They entered the Corningware store owned and operated by our client World Kitchen, Inc.  While in the store four customers (the Rodriguez defendants) made disparaging comments about the plaintiffs' sexuality and threatened to "kick their ass".  Once the plaintiffs left the store they were attacked and injured by these four individuals.  All six customers sued World Kitchen and the Citadel Mall.  World Kitchen's demurrer to the cross-complaint of the Rodriguez defendants was sustained without leave to amend.  World Kitchen's motion for summary judgment against plaintiffs Olivarez and Lopez was granted , and recently affirmed on appeal.

World Kitchen's defense to the action was that the altercation and the injuries occurred outside the store in the common area owned and controlled by the Citadel Mall.  In addition, plaintiff Darlene Olivarez was an off-duty sheriff's deputy, and she used  her status as a peace officer, including display of her badge and gun, to stop the attack.  Therefore, her claim was barred by the firefighter's rule (that a fireman or police officer cannot sue the party that created the reason for their presence).  Indeed, the trial court based the summary judgment against Olivarez on the firefighter's rule, and the Court of Appeal affirmed the judgment against Olivarez on the firefighter's rule.