On June 8, 2012, plaintiff Dorene Gerber, 72, a substitute secretary, drove to work at Kit Carson Elementary School, in San Diego. She turned onto Kramer Street, which she claimed looked freshly paved and had no signs about construction. She parked across from the school, went to her trunk, and retrieved some items. Gerber closed the trunk and turned to the left in order to cross the street. She claimed that as she turned, the side of her left foot hit a rubberized, yellow temporary reflective street marker partially hidden under her car’s bumper. This caused her to trip and fall. She claimed she fell on her buttocks, her back. Gerber sued the city of San Diego, American Asphalt South, and Luzaich Striping Inc. (doing business as LSI Road Marking), alleging negligence in creation of a dangerous condition. The city of San Diego and American Asphalt South filed a cross-complaint against Luzaich Striping for equitable indemnity and contractual indemnity. They also sought recovery of defense costs and fees for failure to undertake tender of the defense. Luzaich Striping filed a motion for summary adjudication prior to trial on the issue of premises liability, which was granted. The court granted American Asphalt South’s motion for a directed verdict on the issue of premises liability after plaintiff’s counsel rested their case. Gerber claimed there was only one temporary tab marker on the street and that placing the tab where a car would park created a dangerous condition. Her biomechanics engineer testified that the tab was a tripping hazard. Defense counsel asserted that Gerber parked on top of a speed bump. However, Gerber claimed she was not aware she was on a speed bump until she went out to the scene with an attorney in November 2012. According to defense counsel, the city of San Diego entered a contract with American Asphalt South in December 2011 in order to have American Asphalt South do repairs and put slurry (a mixture of an insoluble substance, such as cement) on about 200 streets in the city. American Asphalt South subcontracted with Luzaich Striping to remove thermal plastic striping on the streets and place temporary tab markers in the vicinity of where the lines had been until such time as American Asphalt South applied a slurry coat on the street and then Luzaich Striping would paint striping on the newly slurried street. Documents and testimony indicated that the removal of striping and the placing of temporary tab markers on the area of Kramer Street where Gerber fell was done prior to her fall, on April 16, 2012. The slurry seal was placed on the street by American Asphalt South on July 27, 2012, after her fall, and the city Field Inspector notes and testing of the slurry on that street reflected that the work was done on July 27, 2012. Defense counsel contended that the street was not freshly paved at time of Gerber’s fall and that more than one temporary tab was on the street where she fell. Counsel also contended that there were numerous tabs on the speed bump that Gerber should have seen and that the tab Gerber allegedly tripped on was not present at the time of her fall, but was placed after slurry on July 27, 2012, about six weeks later. Defense counsel further contended that the temporary tabs are routinely placed where cars park, bicycles ride, and pedestrians walk, and are a safety feature approved for use by the state. Thus, counsel asserted that there were no known problems with the temporary tab markers being tripping hazards., Gerber claimed she suffered a compression burst fracture of the lumbar spine at the L3 level. However, she did not go for medical treatment until three days after accident. Gerber ultimately underwent lumbar surgery with the placement of pins and a rod on July 20, 2012. The procedure was performed by a workers’ compensation surgeon. Plaintiff’s counsel referred Gerber to an expert orthopedic surgeon after Gerber stopped visiting the workers’ compensation surgeon. The expert opined that Gerber might need another fusion surgery in the future, as Gerber’s spinal discs were moving and not stable, but that it could not be done until Gerber’s bone-density improved. Gerber returned to work for one day after the event, but then never returned thereafter. She continues to complain of back pain, lower-leg pain, and difficulty walking. She also requires the use of a roller walker. Plaintiff’s counsel estimated Gerber’s life expectancy to be for another 12.9 years, based on government charts. The plaintiff’s gerontology expert testified that in America, the elderly now want to live active lives into their 60s, 70s, and 80s, and that the accident prevented Gerber from doing that. Thus, Gerber sought recovery of $172,000 in past medical expenses, $180,000 in future medical expenses, $18,500 in past lost income, about $3,500 in past lost benefits, about $238,650 in future lost income, and about $350,000 in lost pension payments. She also sought recovery of $1 million in damages for her past pain and suffering and $5 million in damages for her future pain and suffering. San Diego Unified School District filed a Complaint in Intervention against all of the defendants, seeking recovery of the worker compensation sums paid to Gerber for her injury. The defense’s orthopedic surgery expert testified that Gerber did have a compression burst fracture and that the initial surgery was appropriate. However, the expert opined that Gerber was not a candidate for additional surgery. The defense’s expert internist, who had experience with elderly patients, said that Gerber’s history of balance issues, numerous recent prior falls, and poor health likely contributed to her fall. The defense’s joint biomechanics engineering expert opined that the fall could not have occurred as Gerber explained and that Gerber would not have turned to the left and fallen flat on her buttocks, which was the type of force required for this type of burst facture. He also testified the temporary tab markers were not a tripping hazard. Defense counsel argued that future medical treatment was not warranted and that it was mere speculation that Gerber, who was 72 at the time of her accident, would work the rest of her life. Counsel also contended that Gerber was not receiving benefits with her work and would not be eligible for a pension as a part-time temporary employee. In addition, defense counsel contended that Gerber’s life expectancy was closer to three to five years, than it was to 12.9 years, due to numerous prior health issues.