Case details

Defense argued video showed no employee negligence

SUMMARY

$0

Amount

Verdict-Defendant

Result type

Not present

Ruling
KEYWORDS
knee, knee derangement
FACTS
At around 10:36 a.m. on Aug. 18, 2013, plaintiff Genell Kahey, an unemployed 55 year old, slipped and fell on a wet floor, directly adjacent to a satellite floral display, in the floral department at a Ralphs Grocery Store in Granada Hills. Kahey subsequently struck her right knee. The fall and the moments before the fall were captured on surveillance video. Kahey sued the operator of Ralphs Grocery Co., Hughes Markets. Kahey alleged that the wet floor constituted a dangerous condition and that Hughes Markets was negligent for failing to address the condition. Plaintiff’s counsel argued that Hughes Markets was negligent for failing to perform a required inspection of the floral department within 30 minutes of the last sweep. Counsel also argued that Hughes Markets was negligent for failing to have an employee stationed at the floral display on the day of the accident. Counsel contended that the store’s employees failed to discover the spill at 10:32 a.m. and clean it up completely by 10:34 a.m. Thus, counsel argued Hughes Markets was liable for its employees’ failure to timely clean up the hazardous condition. Plaintiff’s counsel further contended that there was surveillance footage of an unidentified employee wiping the floor on the other side of the display just minutes before the accident and that this was sufficient to establish notice. Defense counsel contended that the surveillance 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 Kahey fell and that the unidentified customers were the source of the spill because they failed to put the flowers in the plastic bags that were available near the floral display. Counsel noted that the surveillance video captured a broom sweep of the area at 9:44 a.m., followed by multiple customers selecting flowers from the display at 10:21 a.m. to 10:22 a.m. without using bags. At 10:32 a.m., an employee walked by the area carrying a large box of merchandise, and at 10:34 a.m., an unidentified employee walked by the end of the floral display, stopped, bent over, wiped the floor with a rag, and picked debris up off the floor. Kahey fell less than two minutes later. Defense counsel contended that the employee carrying a box at 10:32 a.m. was not negligent for failing to see something on the floor while carrying a large container in front of her. Counsel also argued that the surveillance footage of the unidentified employee wiping the floor should be disregarded because there was no way to tell what, if anything, he was cleaning. Counsel further argued that there was no evidence to assume that the employee who performed a cleanup in front of the flower display at 10:34 a.m. should have seen liquid on the floor on the side of the display where Kahey fell. Thus, defense counsel argued that there was no evidence that that employees acted unreasonably., Kahey claimed that she sustained an internal derangement of her right knee. Following her fall, Kahey checked out of the store and, later that evening, presented to an emergency room with complaints of knee pain. She was thereafter referred by counsel to a chiropractor, who, in turn, referred her for an MRI of the right knee and to an orthopedist. The MRI identified a possible anterior cruciate ligament tear, and the orthopedic surgeon recommended surgery. Kahey was ultimately discharged from the orthopedist on Nov. 21, 2013, after having never undergone the surgery. However, Kahey testified that she was still symptomatic. She claimed that since she is the primary caregiver for her terminally ill brother, she could not have the surgery at that time. She alleged that she probably has either a torn meniscus or torn ACL and that she needs diagnostic arthroscopic surgery, at minimum. Thus, Kahey sought recovery of $7,000 in past medical costs and between $35,000 and $50,000 in future medical costs. She also sought recovery of damages for her past and future pain and suffering. Defense counsel argued that Kahey did not have an ACL tear or a meniscus tear and that both were normal. Counsel contended that the plaintiff’s treating orthopedic surgery expert made the surgical recommendation, but never reviewed the MRI film itself. Counsel also contended that the orthopedic tests should have confirmed that Kahey did not have an ACL tear and that the interpreting radiologist only diagnosed Kahey with a “possible ACL” tear. In addition, counsel contended that the plaintiff’s treating orthopedic surgeon, whom Kahey only saw once, testified at deposition that Kahey had an ACL tear and even pointed to images from the MRI that demonstrated the same, but that at trial, the expert changed his opinion and testified that Kahey injured her meniscus, not her ACL. Thus, defense counsel argued that Kahey was referred by counsel to multiple medical providers, all of whom performed unnecessary treatment on Kahey for the purpose of secondary gain. Defense counsel introduced post-accident video of Kahey in a store and contended that Kahey appeared to be walking without difficulty.
COURT
Superior Court of Los Angeles County, Los Angeles, CA

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