June 11, 2009

Trial Case Note:
Falling from Grace

By Kevin L. Connors

With over $200,000 in special damages for related medical bills and “lost” wages, and a specious claim that the Plaintiff lost his job because of his slip and fall injuries, an element of damages vigorously contested through every phase of the trial, this trial, and its ultimate defense verdict, hinged on several key factors. This trial again illustrates the necessity of remaining true throughout any trial to a few critical concepts to enable the jury to trust the “more likely than not” truths initially raised in your Opening Statement to the jury.

No less powerful than the synaptic bridge between an opening “statement” and a “closing argument,” the “in-between” is where juries gain or lose patience with the common sense believability of why you have donned blue suit and red tie, apologizing for their inconvenience, graciously thanking them for their attentive thoughtfulness to odd details, in an attempt to construct a mental stage upon which the theater of accident dislocates the jurors from their otherwise normal routine of family, work, and the joyous crisis of being alive.

This jury trial turned on a distracted, disinterested Plaintiff unwilling to accept responsibility for his own trip and fall on an alleged uneven sidewalk in downtown Philadelphia.

Compressed into a claustrophobic Philadelphia courtroom, equipped with the worst possible acoustics, and lacking any technological advancement beyond a snoring bailiff, this jury trial turned on a distracted, disinterested Plaintiff, who fell prey to case-dispositive fallacies, one being his seeming abhorrence to accept responsibility for being the primary cause of his own trip and fall on an alleged uneven sidewalk in downtown Philadelphia, after testifying that he saw that the sidewalk was uneven about ½ block before he actually tripped and fell, and the second being his specious claim of being forever forced out of work, even though his fall occurred minutes after leaving his primary care physician’s office, for a general physical examination, in the course of which he indicated, and the doctor thankfully recorded in his chart notes, that the Plaintiff was intending to shortly retire from working as a bookkeeper for a local manufacturing company.

Yes, the Plaintiff tripped, and yes, he fell, and yes, he sustained a somewhat serious injury to his non-dominant elbow, requiring surgery, and post-surgical care that concluded almost three years before his recent trial.

Perhaps as problematic for the Plaintiff was the fact that his own “expert medical witness,” who rendered no care to the Plaintiff following the Plaintiff’s fall, and was only involved in the case, to testify as the videotaped medical expert witness, agreed, under self-effacing cross-examination, that the Plaintiff really had no physical limitations preventing him from being able to do the same kind of work that he had been doing before he fell, namely bookkeeping and accounting, both of which are essentially sedentary in nature, when the medical expert witness finally examined the Plaintiff some two years after all medical treatment had ceased.

It was not contested that the Plaintiff was injured, with the defense contending that none of the Defendants were negligent.

Defending the claim, it was not contested that the Plaintiff was injured, and that the Plaintiff required surgery after his fall, with the defense contending that none of the Defendants were negligent, and that the Plaintiff’s fall was simply caused by the imperfectly, onion-shaped Plaintiff losing his balance through inattentiveness, and not through the negligence of any Defendant.

Perhaps as importantly, the Defendants, to include the premises owner, a general contractor hired by the premises owner, and a subcontractor (our client) hired by the general contractor, never engaged in any finger-pointing, and never claimed negligence against any other Defendants, so that all of the defense witnesses testified that the sidewalk repairs were made according to schedule, according to code, and according to the contracts between the Defendants, with several defense expert witnesses testifying that the sidewalk repairs were made according to industry standards, local building and property management codes, and that there was no “defect,” or “dangerous condition,” such that the Plaintiff’s Humpty Dumpty fall had been caused collectively, or individually, by the Defendants.

No less importantly, photographs of the accident location, only a stone’s throw from where the jury deliberated through their court-appointed luncheons, evidenced the urban reality that our world is surprisingly not flat, and that we must, therefore, be on the lookout for the all-too-obvious seams in this matrix.

In a desperate closing argument advancing evil conspiracy theories, it came down to “he came, he saw, and he went oops!”

Need this trial, and its underlying accident, be any more complicated than that statement? When thinking through that question, ask yourself why you would think that accident, and claim for damages, would ever be worth, as demanded, several hundred thousand dollars, even in Philadelphia County?

So the “truths” that bridge the “in-between” from openings to closings, can best be suspended with the anatomical humanistic architecture of our being a species that spends almost its entire existence on its feet, in transit, and always in motion, in physical space demanding the trivial but mindful attention to what is before our very eyes.

Seven of the eight jurors agreed with the verdict that no Defendants were negligent.

Stunned by the jury’s verdict, the now alert and open-eyed Plaintiff demanded that the jury be polled, with seven of the eight jurors agreeing with the verdict, that no Defendants were negligent, with no other questions on the verdict sheet needing to be answered by the jury on that day.

In that trial, the evidence, through all of the witness testimony, all of the photographs, and all of the expert witnesses, made it obvious that the Defendants were not negligent, and that the Plaintiff’s fall was not the responsibility of any of the parties that the Plaintiff had sued.

Post-trial Motions were denied by the trial court, and the matter, in the absence of any trial error, is in the course of being appealed by the Plaintiff.

This trial was chaired by Erin O’Keefe, Esquire, supported by our casualty litigation practice group, and with the undersigned offering some trial assistance unworthy of significant comment.

A special thanks to our client for allowing us to try this case to a defense verdict in such a Plaintiff-friendly jurisdiction.

Questions concerning this trial, its presentation, or its outcome, can be directed to our casualty litigation practice group attorneys.

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