On the night of Oct. 28, 2011, plaintiff Roberto Gutierrez, 25, a student at a local technical college, was at a party at the residence of Sean Osborn, in Glendora. Gutierrez was using someone else’s cell phone in an attempt to locate his own cell phone when he fell into an empty pool, striking his head. He claimed to his head and right shoulder. Gutierrez sued Sean Osborn and Sean Osborn’s parents, Susan Osborn and Michael Osborn. Gutierrez alleged that the defendants’ failed to warn of the empty pool, creating a dangerous condition. Mrs. Osborn was ultimately dismissed from the case prior to trial. Gutierrez claimed that there was inadequate lighting by the pool, so he did not know that the pool was empty. He also claimed that there should have been notice of the empty pool. Gutierrez further claimed that he was either pushed or bumped into the pool and that no one should have been allowed outside near the empty pool. Defense counsel contended that Sean Osborn told everyone at the party about the empty pool and that there was adequate lighting around the pool, as well. Counsel argued that Gutierrez must have known the pool was empty, as he was near the area for at least 30 minutes prior to the incident. Thus, defense counsel argued that Gutierrez was comparatively negligent for being inattentive and admittedly using a cell phone during his search. In response, plaintiff’s counsel argued that the only independent partygoers who testified contradicted the defense’s assertions. Specifically, the partygoers testified that there was no lighting near the empty pool and that they were not told that the pool was empty. In addition, Gutierrez claimed that he was only near the empty pool for about 15 minutes before the accident., Gutierrez claimed he sustained a right shoulder separation, a laceration to his head, and a traumatic brain injury. He was subsequently taken by ambulance to a hospital, where his right arm was placed in a sling and he underwent an X-ray of his head. Gutierrez claimed that his head laceration and shoulder both healed, but that he now suffers from neurological issues, which included short-term memory problems, loss of equilibrium, and fleeting headaches. He claimed no loss of income, and only sought recovery for non-economic damages. Thus, plaintiff’s counsel asked the jury to award a non-specific amount for Gutierrez’s damages. Defense counsel disputed Gutierrez’s alleged traumatic brain injury. Counsel noted that Gutierrez initially only claimed a right shoulder separation and a laceration to his head and that Gutierrez did not make a claim of a traumatic brain injury until trial two years later. Counsel also noted that there were no medical bills or records for any alleged head and that all of Gutierrez’s medical records stated that he was normal. Thus, defense counsel argued that Gutierrez’s damages, before apportionment, should only total $10,000.