Archives for Premises Liability

Frank D’Oro Obtains Dismissal During Voir Dire on Slip and Fall Case

Frank D’Oro recently obtained a dismissal for waiver of costs during voir dire on a slip and fall case for the defendant. Plaintiff suffered a fall in the defendant’s store and alleged medical expenses of more than $200,000 related to two surgeries and a head injury.  Plaintiff rejected a Statutory Offer of $100,000 early in litigation. As trial approached, Plaintiff made a number of demands, ultimately demanding less than the expired Statutory Offer. The defense team settled on a waiver of costs during voir dire after a successful day of arguing crucial motions in limine excluding a theory of liability based on choice of flooring and excluding evidence of the amount of the medical bills.

 

Terence Carney Obtains Verdict For Ralphs Grocery Store

Terence

Terence P. Carney recently obtained a jury verdict for the exact same amount of money that was originally offered to the plaintiff at the start of trial. The case occurred at a Ralphs supermarket in Los Angeles where the plaintiff, a 41 year old makeup artist, slipped and fell in spilled soda near the self-checkout. Plaintiff alleged injuries to her lower back, right hip and knee and headaches with residuals of dizziness, depression and loss of concentration. The injury to the plaintiff’s lower back was supposedly so severe that it would require a two level fusion. She was seeking a total of $825,000: $35,000 in past medical expenses, $150,000 in future medical expenses, $70,000 for past wage loss, $70,000 for future wage loss and $500,000 for pain and suffering. After a 5 day trial, the jury returned a verdict for $100,000, the exact same amount that had been offered prior to the start of the trial. Congratulations to Mr. Carney!

Wesierski & Zurek brings in defense verdict for the City of Norwalk

In the early morning hours of January 18, 2013, a motor vehicle versus pedestrian accident occurred in a crosswalk located at the intersection of Firestone and Norwalk Blvd.  Wesierski & Zurek LLP represented the City of Norwalk.  Plaintiff was a 17 year old boy who was walking to school when defendant hit him at 40 mph.  Defendant’s car threw plaintiff almost 100 feet and he sustained major orthopedic and brain injuries.   Plaintiff sued the driver, the City of Norwalk (which owned the center median that separated the Eastbound and Westbound lanes of Firestone), the arborist that maintained the trees in the median, and the landscaper that maintained the bushes in the median.  Plaintiff alleged that the presence of the trees and bushes in the median created a dangerous condition of property since they created a sight obstruction for westbound drivers and pedestrians crossing the eastbound lanes of the crosswalk.  The median defendants argued that there was no evidence of poorly maintained vegetation, no evidence of a dangerous condition of property when used with due care, and no visual obstructions between the pedestrian and the driver once the pedestrian left the center median and began crossing the westbound lanes, where plaintiff was hit.  It was also argued by the median defendants that the driver and pedestrian each had ample opportunity to perceive and react to the other, and that they were both at fault for not being attentive.  Plaintiff asked for $35 to $40 million, including a $20 million life care plan.  Non-suits for the arborist and landscaper were granted by the court.  The City of Norwalk received a defense verdict since there was no dangerous condition of property.  Jury awarded the plaintiff almost $14 million in damages, and apportioned fault as 5% against plaintiff and 95% against the driver. The City offered $250,000 pre-trial, which was rejected.  Once post-trial motions are ruled on, the plaintiff will likely owe several hundred thousand dollars to the City of Norwalk.

Frank D’Oro Obtains Defense Verdict For Ralphs Grocery Store

Frank D’Oro (trial counsel), Jill Levy and the Los Angeles W&Z defense team obtained a defense verdict on Wednesday October 26, 2016 on a slip and fall case. The case occurred at the Ralphs in Granada Hills in August 2013, where the plaintiff, a 57 year old female, slipped and fell on water directly adjacent to a satellite floral display. Plaintiff was treated entirely on a lien and incurred bills just over $10,000 with a recommendation for future surgery costing $35,000- $50,000. Plaintiff’s radiologist diagnosed her with a “possible ACL” tear and her orthopedist recommended surgery. Despite this diagnose, the last time plaintiff was treated was three years ago. Offers up to $25,000 were made before trial but plaintiff demanded $95,000. Video of the accident showed some customers selecting bouquets of flowers (which were kept in buckets of water) from the satellite floral display about 15 minutes before plaintiff fell.

The defense argued that the unidentified customers were the source of the spill because they failed to put the flowers in the plastic bags that were near the floral display. There was footage of an unidentified employee wiping the floor on the other side of the display just minutes before the accident which plaintiff argued was sufficient to establish constructive notice. Ultimately, Frank convinced the jury that there was no evidence that the employee cleaning the floor near the accident site did anything wrong or that there was a trail at that point that should have led him to the location of the accident nearby. Insofar as damages, plaintiff’s orthopedist testified at deposition that plaintiff had an ACL tear and even pointed to images from the MRI that demonstrated the same. At trial, he was impeached with images showing there was no tear. His opinion there changed to she had a meniscus tear, not a ACL tear. Plaintiff testified in tears that she failed to get regular treatment because she had to take care of her terminally ill brother. The jury returned a defense verdict for Ralphs.

Tom Wianecki receives overwhelming Defense Verdict for County of Orange

On October 18, 2016, Tom Wianecki and the W&Z defense team triumphed in trial when the jury ruled in favor of the County of Orange in a personal injury case.

This case was brought by the parents of a 3 ½ year old girl who was hanging on a County table, which caused it to tip and fall onto her. The young girl sustained a laceration to her face, adjacent to her eye, which left a raised scar. Plaintiff alleged the table constituted a dangerous condition of public property under the Government Claims Act. The table was only a few years old, however, and there had been no prior incidents nor was the table defective or in disrepair. Opposing counsel claimed the table needed to anchored to the floor, wall, or to other adjacent tables. The County personnel asserted the table was secured and successfully served 3,000 clients per month for 2 ½ years without incident.

At mediation, Plaintiff asked for $185,000. That amount was reduced to $75,000 in closing argument at trial. After 20 minutes of deliberations, the jury returned a defense verdict, 10-2, that the table did not constitute a dangerous condition of public property.

Ron Zurek Defuses Big Emotional Damage Claims With Good Verdict In Admitted Fault Case

Ron recently defended an injury case where his client, a new and young driver, accidentally made a mistaken left turn into the path of an oncoming car, forcing that car to collide with a light pole resulting in a significant collision.  Husband driver and wife passenger, with children in the back, were both injured.  The wife passenger sustained serious facial injuries including fractured bones and a large laceration just above her lip, along with a fractured rib/punctured lung.  Husband and child both thought she was dead at the accident scene.  She had a hospitalization with complications, a subsequent nose revision/plastic surgery operation and considerable medical treatment for her neck and back.  She has an identical twin who swore that accident injuries changed her life forever.  Driver of the car, her husband, also sustained injuries and together they claimed that they lost out on buying a house, lost considerable income because they could not work and at the trial they asked the jury to award them about $10 million.

It seemed that the claimed injuries were not as severe and longstanding as were being claimed.  Partly just by using photographs and by emphasizing inconsistencies in statements and a timeline of events, Ron argued that pretty much all of the future damage claims were against the evidence and therefore not believable.

Heading into the trial Ron’s client had offered to settle the case for a significant amount of money, though far below the multi-million dollar level.  The jury ultimately returned a verdict awarding the plaintiffs only a slight amount money more than that which had been offered, far far less than had been demanded.

Frank D’Oro wins case for Family-Run Restaurant

Frank D’Oro and the defense team triumph in trial when the jury rules in favor of a historic family-run restaurant.

 

In June 2012 at approximately 11:30 a.m., plaintiff and her friends entered defendants’ restaurant for lunch. After being told there was a wait to be seated, the plaintiff and her friends proceeded outside to the parking lot to smoke a cigarette. While waiting outside, the plaintiff leaned against a section of fence along the right side of the parking lot in front of the restaurant. Approximately two minutes later, the top rail of the fence fell out of the post, sending the plaintiff backwards down an embankment.

Claims for negligence were brought by plaintiff against defendants (the owners of the restaurant). Plaintiff alleged that the owners of the restaurant (the defendants) were negligent in the repair and maintenance of the fence. As a result of their negligence, plaintiff suffered a back injury that required surgery. Mr. D’Oro argued the fence was in an obviously deteriorated state and was designed to be used as a visual barrier for cars in the parking lot only. Due to the condition of the fence, Mr. D’Oro argued that leaning or sitting on the fence was negligent by the plaintiff.

Following a short deliberation, the jury ruled in favor of the defense. The jury found no negligence by the owners. The verdict was the first of back to back jury verdicts in Mr. D’Oro’s favor at years end.

 

Another New Case Limits Liability For “Take-Home” Asbestos Exposure To Family Members

In Haver v. BNSF Railway Co., plaintiff Lynn Haver’s former husband Mike worked for the defendant’s railway, and brought home asbestos on his clothes. Years later his wife Lynn contracted mesothelioma and died. Her children sued the employer, BNSF Railway, on a premises liability cause of action. The employer demurred, arguing that the recent Campbell case holds that there is no liability for such “secondary” or “take-home” exposure to asbestos. The plaintiffs opposed, arguing that the more recent Kesner case should apply, holding that an employee’s nephew who was exposed to take-home asbestos could sue the manufacturer for negligence in products liability. The Haver judge agreed with the employer and granted the demurrer, and the court of appeal agreed. Essentially, the court of appeal held that the case was one for premises liability negligence, like Campbell, not for products liability negligence, like in Kesner. Essentially, a manufacturer of asbestos owes farther-reaching duties than a landowner; a manufacturer owes a duty to anyone it’s products foreseeably injure, whether the purchaser or his family, whereas a landowner’s duties extend only as far as the workers and other visitors upon land, and not to their families who claim the workers brought asbestos home on their clothes. Further, the court held that it did not matter whether the defendant landowner was an indirect hirer, like in Campbell (where the worker who brought the asbestos home was an independent contractor of an independent contractor, hired only very indirectly through the defendant landowner), or a direct, true employee of the defendant, like in Haver. Either way, the Campbell rule is a broad one, denying that “a premises owner has a duty to protect family members of workers on its premises from secondary exposure to asbestos … strong public policy considerations counsel against imposing a duty of care on property owners for such secondary exposure” (Campbell’s language). The Campbell rule applies to “family members of workers” on defendant’s premises, any workers, without distinguishing between direct employees and other contractor’s employees.

There are several issues to be addressed in secondary exposure cases, and a review of the main cases to date may help in analyzing them. The first thing to keep in mind is that the “exclusive remedy” rule of worker’s compensation only applies to the worker himself, not to a family suing for their own injury, much less to the heirs of that family member suing for wrongful death.

The seminal case of Campbell v. Ford Motor Co. was decided by Second District (Los Angeles appellate region), Div. 7, in 2012. In California, courts of appeal are not bound by parallel precedent, though it is highly persuasive. Courts of appeal have to follow the California Supreme Court, but are theoretically not bound by decisions from other appellate districts. In Campbell, plaintiff Mary Campbell contracted mesothelioma, alleged from washing her brother’s and father’s clothes many years ago, during the time they worked for a building contractor that installed asbestos insulation at a Ford plant, while working for an independent contractor hired by a general contractor hired by defendant Ford. She sued Ford in premises liability action, contending that Ford allowed unsafe materials on it’s property, did not properly guard against exposure, etc. The jury found Ford 5% responsible, and Ford appealed. The court weighed the factors that go into a determination of whether a duty is owed, including foreseeability and burden on defendant in trying to prevent the harm, and concluded that “a property owner has no duty to protect family members of workers on its premises from secondary exposure to asbestos used during the course of the property owner’s business”.

Notably, even though Ford also argued that it shouldn’t be liable because (a) the workers worked for independent contractors, and were not Ford employees, and (b) they were remote hirees of another independent contractor, working for a company not even directly hired by Ford, the Campbell court appears not to have made that the basis of their decision. They said, “Our analysis does not turn on this distinction”, between direct employees or remote hirees of independent contractors. In other words, if you have a case in which the plaintiff’s attorney says “Campbell does not apply to us because my client was a direct employee of the defendant, not a remote, indirect independent contractor”, the response should be that Campbell specifically said it was not hanging it’s hat on that distinction. Instead, the rule is phrased in terms of whether a landowner owes a duty to the family of any worker on it’s premises, no matter who he is working for. Further, the rationale for the rule – foreseeability of injury to family, and burden on industry to prevent it – would appear to apply in equal measure to suits brought by families of others, not just workers, who claim to acquire asbestos on premises. For instance, if the wife of a man who frequented a repair shop acquires mesothelioma, and sues the repair shop on the theory that she got asbestos fibers laundering his clothes, it would not seem a good distinction that Campbell phrased it’s rule in terms of the families of “workers” who acquired asbestos on premises. The same considerations would apply with greater or more force to a patron, or other visitor or invitee on property who did not even rise to the level of worker. If the family of a “worker” cannot sue a landowner for secondary asbestos exposure from washing their clothes, neither should the family of a “patron” or other “invitee”.

A different distinction was successfully made in the Kesner case, however. In Kesner, which is a First District case (San Francisco appellate district), the court very recently held that a family member can sue for secondary exposure, where the defendant is the manufacturer of the asbestos or asbestos-containing component, and where the lawsuit is for negligence in products liability, not premises liability. The Haver court took Kesner into account, but held that the cases were different because Kesner involved suing a manufacturer in products liability whereas Haver involved suing a landowner in premises liability.

CONCLUSION

The Campbell no-duty rule protects all landowners (and presumably operators) from all take-home asbestos claims based on premises liability, regardless of whether the exposed workers were employees or independent contractors. Family members simply cannot sue the landowner in premises liability for inhaling asbestos carried home on a worker’s clothes. As stated in Haver, “Campbell made clear that it’s no duty rule encompassed all plaintiffs who suffered secondary exposure to asbestos off the landowner’s property, regardless of the frequency of their contact with the worker who was exposed on the premises, or the worker’s employment relationship with the landowner”. This same rule should also apply, for the same reasons, where the defendant land owner / operator has no employment relationship with the exposed party at all – such as where a regular league bowler learns that he has been exposed to asbestos at the bowling alley for years, or a student using a gym in the process of refurbishment takes home asbestos on his clothes. The key to the take-home defense is that it applies to all premises liability claims, regardless of what the exact employment or invitee relationshipis, frequency of contact, etc.

This raises the question of whether a family member can sue their loved one’s employer, etc., in products liability rather than premises liability. Yes, if the defendant is the manufacturer, or someone in the chain of commerce; No, if the defendant is just a place where the victim’s husband worked, shopped, or visited. A products liability claim requires the defendant to be “in the chain of commerce” of a product, i.e., a manufacturer, wholesaler or retailer, but not just someone who has a product around. As an example, in Peterson v. Superior Court, plaintiff hotel guest slipped in a very slippery bathtub and sued not only the tub manufacturer but the hotel for products liability. The California Supreme Court held that while plaintiff could certainly try and sue the hotel in ordinary premises liability for negligence, the hotel did not “sell” plaintiff the bathtub and so she could not sue the hotel for products liability. Incorporating a product into your business model is not the same as being a “seller” of the product or even in the “chain of commerce” of the product. Thus, secondary exposure plaintiffs generally cannot claim that they or their directly exposed family member bought any product from defendant, or that defendant sold asbestos in a product to anyone, unless the defendant was truly engaged in selling an asbestos-containing product, in the ordinary sense of the word “sell”. Just having an asbestos-containing product around, or using it as part of the business, is not enough to trigger products liability; the plaintiff would have to sue for premises liability or ordinary negligence. And there, Campbell would protect the non-seller from any secondary-exposure liability.

Wesierski & Zurek LLP has litigated the secondary-exposure issue and the attempts to get around it. If you have any questions or face any challenges in this area, please feel free to contact one of our partners to discuss.