April 7, 2006

Premises
Liability
Case Note

A recent slip and fall trial demonstrates the persuasive power of visual evidence. A suburban county jury recently entered a defense verdict against a 46 year old divorced municipal water authority meter reader who was suing a homebuilder for slip and fall injuries. The Plaintiff had fallen on the basement steps of a newly-built house that was two weeks away from settlement with the homebuyer.

The Plaintiff had claimed that the steps were covered with drywall dust, saw dust, and other construction by-product debris. Although the Plaintiff’s fall was not “witnessed,” the homebuilder, which was building a multi-home development, had its site superintendent arrive at the accident site shortly after the Plaintiff had fallen, and the superintendent wisely photographed the basement steps.

During discovery, it was also learned that the Plaintiff’s employer had investigated the Plaintiff’s fall and had determined, in reliance upon both oral and written statements given by the Plaintiff, that the Plaintiff had caused his own fall by being inattentive and by not using an available handrail.

The Plaintiff was then disabled for two years post-accident, with the Plaintiff returning to work in a restricted-duty capacity, notwithstanding the Plaintiff undergoing four low back surgeries. His physicians eventually recommended that the Plaintiff undergo a lumbar fusion surgery, after which the Plaintiff stop working altogether.

Calculated damages were in the range of almost $2,000,000.00. Before trial, the homebuilder remained resolute in its affirmation of no liability.

On damages, various elements were developed to include damages in the range of almost $2,000,000.00 for past medical bills and wage loss, future medical bills, and future wage loss and impairment of earning capacity. Before trial, the homebuilder remained resolute in its affirmation of no liability. No offers were extended before trial in response demands of several million dollars, exceeding policy limits.

The trial devolved into ten fact witnesses and six expert witnesses testifying. Fact witnesses were called to testify regarding the Plaintiff’s accident, condition of the basement steps on which the Plaintiff fell on the accident date, initial investigation of the accident by both the homebuilder and the Plaintiff’s employer, and accident statements made by the Plaintiff regarding his uncertainty over what caused his fall, and whether any dust or debris was on the basement steps.

Liability expert witnesses for both sides testified as to the safety of the staircase.

Liability expert witnesses were presented for the Plaintiff and the homebuilder. Plaintiff’s expert testified that the steps were unsafe, hazardous, and slippery. The homebuilder’s expert testified that the steps were safe, not dangerous or hazardous, and were normal for a construction site.

Plaintiff also presented two medical experts, testifying to the Plaintiff’s injuries, treatment, and need for future medical care, and experts for life care and vocational planning, and an economist for future wage loss and impairment of earning capacity. Total damages included $80,000.00 in medical bills, $100,000.00 in past wage loss, $500,000.00 in future medical expenses, and between $700,000.00 to $1,300,000.00 in future wage loss and impairment of earning capacity. Total special damages presented by the Plaintiff, not including any claim for pain and suffering, humiliation, or loss of enjoyment of life, were between $1,380,000.00 to $1,980,000.00.

After brief deliberation the jury found that the Plaintiff had failed to prove that the homebuilder was negligent.

Deliberating for only one hour, the jury returned a verdict for the homebuilder and against the Plaintiff, finding that the Plaintiff had failed to prove that the homebuilder was negligent. The post-verdict jury polling determined that the jury, which rendered a 10-2 verdict in favor of the homebuilder, was originally divided 7-5 in favor of the homebuilder and against the Plaintiff when jury deliberations started.

Deliberations focused in on several photographs of the basement steps taken about thirty minutes after the Plaintiff fell.

Jury deliberations focused on critical evidence consisting of several photographs of the basement steps where the Plaintiff fell. The photographs were taken about thirty minutes after the Plaintiff’s fall, with the homebuilder arguing in its closing statement that the photographs were a permanent record evidencing the basement steps being safe, free from debris and dust, and further evidencing that the homebuilder was not negligent in maintaining the property prior to the Plaintiff’s fall. In addition, two witnesses testified that they had walked up and down the basement steps about thirty minutes after the Plaintiff fell, and neither witness believed the steps to be slippery, unsafe, or dangerous.

The Plaintiff's clothing was also critical to the outcome. Although the Plaintiff testified that he originally fell on his back and crawled up the basement steps on his stomach and knees, his clothing only had dust particles on the buttocks of the his pants.

Also critical during jury deliberation was the fact that the Plaintiff contended that, after falling on the steps, his clothing became covered in dust, with Plaintiff’s counsel introducing the Plaintiff’s clothing into evidence at trial. Although the Plaintiff testified that he originally fell on his back, after which he testified that he crawled up the basement steps on his stomach and knees, the Plaintiff’s clothing only had dust particles on the buttocks of the Plaintiff’s pants, with there being no appreciable dust on the front of the Plaintiff’s pants, suggesting that the steps could not have been covered with dust if the Plaintiff had, in fact, crawled up the steps after falling.

The jurors polled were unanimous that the photographs of the basement steps suggested that the homebuilder had not been negligent.

Perhaps once again proving the power of demonstrative evidence, the jurors polled were unanimous that the photographs of the basement steps suggested that the homebuilder had not been negligent, and had not allowed either dust or debris to collect on the steps, with the photographs visually suggesting that the steps appeared to be completely normal and safe for anyone walking up and down.

Both the homebuilder and its insurance carrier were thrilled with the result.

(Back to top)