Case details

Defense: Plaintiff assumed risk by pushing car from behind it





Result type

Not present

ankle, fracture
On July 15, 2011, at around noon, plaintiff Patricia Ness, a dental receptionist in her 30s, was driving on Reed Street in San Diego when her car broke down. As a result, she exited the vehicle and began pushing it up a slightly inclined street with the help of her passenger, coworker Hannah Ewing. While Ness was pushing the car from the rear bumper and Ewing was pushing it from the driver’s side door, the vehicle began rolling backward. As a result, Ness twisted and fractured her right ankle. Ness sued Ewing. She alleged Ewing was negligent for failing to keep control of the vehicle while pushing it. Specifically, Ness claimed that Ewing was in control of the vehicle since she was pushing it from the driver’s side door and that Ewing caused the car to roll backwards. Ewing claimed that that Ness assumed most of the risk of the inherently dangerous condition by attempting to push the vehicle up an inclined street by standing behind it. She also claimed that she was not negligent in the control of the vehicle, in that there was nothing she did that could have caused Ness’ injury. Thus, defense counsel contended that there was no mechanism of injury that showed that Ewing caused Ness’ injury., On the day after the accident, Ness went to a hospital and was diagnosed with a fracture of the polar dome of her right ankle. Her ankle was subsequently placed in an immobilization cast for roughly three months. Ness then followed up with two weeks of physical therapy. Ness claimed she still experiences pain and discomfort in her right ankle. She also claimed that she was fired from work since her job was unable to accommodate her injury. In addition, the plaintiff’s expert orthopedic surgeon opined that Ness is a candidate for arthroscopic surgery in order to repair the ankle fracture. Thus, Ness sought recovery of $25,000 in past economic damages (roughly split between medical costs and lost earnings). She also sought recovery of $30,000 in damages for her future medical costs, $100,000 in damages for her past pain and suffering, and $300,000 in damages for her future pain and suffering. Defense counsel did not dispute Ness’ ankle fracture, but argued that any surgery she would require in the future would cost $15,000.
Superior Court of San Diego County, San Diego, CA

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