Case details

Defense: Video showed cones present prior to customer’s fall

SUMMARY

$0

Amount

Verdict-Defendant

Result type

Not present

Ruling
KEYWORDS
back, labrum pain, left hip's, left thumb., neck. pain, right knee.injury
FACTS
On May 5, 2012, plaintiff Cynthia Wells, an executive director in her 50s who worked at a nonprofit mental health services organization, parked her vehicle in a parking space in front of a Save Market Supermarket, in Fresno. In front of the store were plants for sale that an employee had previously watered. Wells parked in front of the plants and walked about 5 feet to the curb. However, as she stepped up onto the curb, she slipped and fell. Wells claimed to her left hand, left knee, and left hip. There was video of the incident, though the store’s video cameras are positioned in a long range, focusing on the border of the store exit and parking spaces. Wells sued Save Mart Supermarkets. Wells alleged that the store failed to warn of the wet sidewalk, creating a dangerous condition. Wells claimed that she slipped on water from the previously watered plants. She also claimed that there were no cones present to warn her that the sidewalk was wet. Defense counsel contended that about 15 to 20 minutes before Wells’ fall, a Save Market Supermarket employee watered the plants in front of the store, causing significant water to form on the sidewalk. However, counsel contended that three cones were in the area at the time the plants were watered and that the employee brought out a squeegee to remove the excess water from the sidewalk. Counsel noted that the video of the incident showed two cones, as the employee moved one of the cones to the side with his foot, causing the cone to be out of the video’s angle. Defense counsel further contended that the three cones present at the scene were consistent with the store’s policies. Thus, counsel argued that the store did everything possible to make the area safe and comply with the law. Counsel contended that the standard procedure was to set up the cones before the water was even turned on, which the employee did and that the video showed that most customers avoided the water and moved around it. The defense’s safety expert opined that the store met the standard of care and did what was possible and that other possible means of watering were not economically feasible. In addition, defense counsel questioned Wells’ memory of the scene, noting that Wells testified that right after she fell, she warned an elderly female customer behind her to go around the water. However, the video showed no such interaction. Defense counsel also noted that although Wells claimed that her pain was a nine out of 10 immediately after the incident, she got up and went inside the store, did not request medical attention, and continued shopping for 15 to 20 minutes., Wells claimed she sustained a meniscal tear of her right knee, a tendon injury to her left thumb, a tear to her left hip’s labrum, and pain to her back and neck. She subsequently presented to her regular physician almost two days later. She also sought treatment from an orthopedist and a hand specialist. Wells ultimately underwent arthroscopic surgery on her knee and received injections to the carpometacarpal joint of her left hand. The plaintiff’s family physician testified on Wells’ behalf and the plaintiff’s orthopedic expert opined that Wells’ were caused by the subject fall. Wells claimed that she went back to work after the incident for a short period of time, but by November 2012, she stopped working and could no longer continue. She also claimed that she could no longer garden or play with her grandchildren and that her activities were limited. Wells further claimed that she is deciding whether to have surgery for her hip. Thus, Wells sought recovery of $440,000 in total damages. Defense counsel contended that an MRI taken of Wells’ left knee on May 22, 2012 indicated a degenerative signal without a definite tear. Counsel also contended that medical images of the left hand showed osteoarthritis, and no fractures or dislocations. In addition, counsel contended that Wells first complained of left thumb pain three months after the incident and that the labral tear was diagnosed more than three years after the incident. Thus, defense counsel argued that Wells’ alleged pain was due to her pre-existing arthritis and not the fall. The defense’s orthopedic expert could not determine what caused Wells’ , as the imaging of her knee showed that it was fine after the fall and the meniscal tear was not discovered until before her surgery. However, defense counsel contended that Wells’ medical records showed that she had subsequent falls, including one a few months after the accident, and another in December 2012 with a third fall a year or two later.
COURT
Superior Court of Fresno County, Fresno, CA

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