Tim Lewis and Molly Hage Hold Plaintiff’s Foot to the Fire in High Exposure Trial Victory – Damages Slashed by 90%!
April 21, 2017
Trial Partner Timothy Lewis and Associate Molly Hage of our Fort Lauderdale office have secured a major victory in a high exposure case, saving our client almost $750,000.00, by establishing Plaintiff’s own liability in a slip and fall accident resulting in serious injuries and subsequent surgeries.
The Plaintiff was a 67 year old retired school teacher, who taught mostly first grade for her 37 year teaching career, and presented as likable and sympathetic. She was at a hospital on February 27, 2012 to visit her husband after he had quadruple bypass surgery that morning. At approximately 8:00 pm, the Plaintiff and her son were returning to the hospital after dinner and discovered the doors they originally attempted to enter were locked. A sign posted by that entrance directed them to proceed to the entrance by the emergency room or push a button to call security for assistance. Due to the Plaintiff’s familiarity with the hospital, she and her son traveled south on a sidewalk toward the emergency room. Instead of continuing on the sidewalk, Plaintiff suggested she and her son take a “shortcut” through a known construction zone with barrier fences and posted warning/no trespassing signs. Plaintiff testified that the shortcut she took was a “worn path” that she had observed people traverse previously, though she could not identify whether those people were construction workers. After crossing a “pitch black” dirt area in the construction zone, she stepped a short distance onto a retaining wall, and unexpectedly fell when she went to step down.
Plaintiff sustained a calcaneal fracture that required surgery and the insertion of hardware. Due in part complications from a post-operative wound infection, Plaintiff underwent a total of 5 surgeries, and her surgeon testified the injury was a “life-changing event” and her foot would never be the same. Plaintiff missed the remainder of the 2012 school year and the first semester of the 2013 school year, and retired a year early from the DROP program as a result of her injuries. Plaintiff also testified she suffers ongoing anxiety as a result of her injury.
Through testimony and evidence, we clearly established that Plaintiff had knowledge of the construction occurring at the hospital and in the immediate vicinity of the area in which she sustained her injuries. Despite this knowledge, she chose to deviate from the sidewalk to cut across the construction area at night. Plaintiff and her son testified that there were no barriers in the specific area she fell, and we lacked a witness that could conclusively testify that the barrier fence in that area was up the evening of February 27, 2012. Photographs taken the following day show the fence in place, but photographs taken the morning of the Plaintiff’s accident show the fence may have been taken down while work was being done in that area.
After a two day non-jury trial, Plaintiff demanded damages totaling $793,085.57, including lost earnings of $40,669.92, medical lien of $47,415.65 (total medicals exceeded $204,000.00), and $705,000.00 in pain, suffering, loss of enjoyment, disability, and mental anguish. The Judge awarded damages in the amount of $568,085.57, including $480,000 in pain, suffering, loss of enjoyment, disability, and mental anguish. The Judge found negligence on behalf of both parties, but attributed 90 percent of the liability to the Plaintiff’s negligence for not exercising due care for her own safety by choosing to voluntarily leave the sidewalk and traverse a construction site, of which she had admitted knowledge, when it was “as dark as it could be.” Accordingly, the judgment against Defendant is just $56,808.55, considerably less than the offers made at mediation and prior to trial.
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