Case details

Gas station customer had actual notice of spill: defense

SUMMARY

$372996

Amount

Verdict-Plaintiff

Result type

Not present

Ruling
KEYWORDS
back, bulging disc, fusion, hypesthesia, lumbar, neurological, radiculopathy, sensory, speech
FACTS
On Feb. 25, 2015, plaintiff Rosario Miranda, 57, parked her vehicle at a gas pump at a gas station located at 21190 Hawthorne Blvd., in Torrance. She put the nozzle inside the tank and attempted to pump her gas, but the nozzle detached from the hose, causing gas to spill onto the ground. Miranda walked into the gas station’s convenience store and told the cashier what had happened. The cashier turned off the gas flow using a shut-off value, and the two of them walked back to Miranda’s vehicle to inspect the scene. As the cashier went back into the store to retrieve cones and materials to clean up the spill, Miranda stayed by her vehicle and took cellphone photos of what had happened. She slipped on the gas and fell. She claimed to her neck and back. Miranda sued the believed operator of the gas station, CF United LLC, and the gas station’s owner, Phillips 66 Co. Miranda claimed the defendants were liable for the dangerous condition that caused her fall. It was ultimately learned that on the date of loss, CF United’s subsidiary, Apro LLC, ran the day-to-day operations of the gas station and that an Apro technician had repaired the hold-open latch on the subject nozzle the day before the accident. As part of the repair, the technician detached the nozzle from the hose and then reattached it. As a result, Miranda voluntarily dismissed Phillips 66 from the case and sued Apro, replacing CF United as the lone defendant. Miranda’s counsel contended that the Apro technician had negligently reattached the nozzle, causing it to fall off when Miranda attempted to use it. Counsel also contended that the Apro cashier on duty did not respond quickly enough to the spill and that the cashier should not have left Miranda alone at the site of the spill. Plaintiff’s counsel further contended that the cashier should have told Miranda to stay away from the spill or pulled her away from the area. As a result, counsel argued that the cashier was not properly trained. Miranda’s oil-industry expert opined that Apro violated various standards and practices in its operation of the gas station. The expert noted that regulations call for a qualified gas station attendant to be on duty at all times and opined that the cashier, who was the only employee at the station at the time, was not a qualified attendant because she was not properly trained. The expert also opined that the gas station violated regulations calling for attendants to have an unobstructed view of gas pumps at all times. Plaintiff’s counsel noted that the convenience store was set up so that whenever the cashier worked the register, her back would be to the gas pumps. Counsel also contended that various objects in the convenience store obstructed the cashier’s view of the pumps. Plaintiff’s counsel argued that if the cashier had a direct, unobstructed view of the pumps, she would have noticed the gas spill immediately and reacted more quickly. Miranda’s safety expert agreed that the cashier’s response to the spill was negligent. He also opined that the concrete floor was dangerously slippery when it was wet with gas. Defense counsel stipulated that Apro’s technician was negligent in failing to properly reattach the nozzle the day before the incident but disputed Miranda’s other claims. Counsel maintained that the cashier was a qualified attendant. The defense also contended that the cashier received proper training and that the cashier acted in accordance with that training when she responded to the spill. Defense counsel also maintained that even if the convenience store had provided the cashier a direct, unobstructed view of the gas pumps, she would not have been able to see the spill because it was blocked by Miranda’s vehicle. Instead, the cashier would have only been able to see the passenger side of Miranda’s vehicle. Defense counsel additionally noted that Miranda had walked through the site of the gas spill multiple times prior to her fall. As a result, counsel argued that Miranda had actual notice of the alleged dangerous condition, yet carelessly continued to traverse the area. Counsel further maintained that Miranda was a grown woman and did not need to be told to stay away from the gas spill. The defense’s biomechanical engineering expert maintained that the cashier’s response to the spill was reasonable. He also opined that while concrete is slippery when wet, after a few minutes the gas evaporates and the concrete returns to a point where it is not considered dangerous., Miranda claimed she sustained trauma to her cervical and lumbar spine, causing pain to her neck and both shoulders. She specifically claimed she suffered intractable, mechanical, axial, discogenic pain to her back; facet-mediated pain; and Modic changes consistent with intractable, mechanic, axial back pain. Miranda was placed in an ambulance and transported to Providence Little Company of Mary Medical Center, in Torrance, where she was treated in the emergency room and released. She was ultimately diagnosed with bulging lumbar discs at the L3-4, L4-5 and L5-S1 levels, resulting in lumbar radiculopathy, and cervical spinal hyperesthesia at the C6-7 level. Miranda began a course of physical therapy in March 2015. She also underwent chiropractic treatment and other conservative care. She was additionally administered three epidural injections of a steroid-based painkiller into her lumbar spine in July 2015, August 2015 and October 2015. Miranda continued physical therapy through April 2018 and then underwent a lumbar fusion surgery at the L5-S1 level. The procedure included the implantation of hardware and the use of a Lanx clamp. After the surgery, she underwent several more months of physical therapy. Miranda’s treating neurosurgeon opined that Miranda will require treatment for the rest of her life. He specifically opined that Miranda will need continued appointments with a spine specialist, treatment with a pain management doctor, physical therapy, chiropractic care, pain medication, and imaging studies. He also opined that Miranda will need three lumbar epidural injections per year for the rest of her life and that Miranda will need another lumbar fusion surgery to address adjacent segment disease. Miranda’s counsel contended that Miranda’s future treatment would cost more than $1 million over her lifetime. Miranda alleged that she has limited mobility due to her and that she has to lie down and rest frequently. She also alleged that her make it hard for her to go walking or hiking with her husband and that she sometimes has severe flare-ups that leave her confined to her home. Miranda further claimed that she used to enjoy riding bikes, traveling, going to concerts and dancing, but that her have limited her ability to participate in those activities. In addition, she claimed she has a hard time with household tasks that involve pushing, pulling and lifting. Miranda raises her young granddaughter, and Miranda claimed that her have limited her in that regard, as well. Miranda sought recovery of past and future medical expenses, and damages for her past and future pain and suffering. She specifically claimed $286,527.50 in incurred medical expenses, including $172,005.88 for the fusion surgery. Her husband, James Gonzalez, filed a derivative claim. Defense counsel argued that the fusion surgery was not needed, as the last MRI of Miranda’s spine, prior to the surgery, showed no compression of the L5-S1 nerve root. The defense’s independent medical examiner, an expert neurosurgeon, opined that Miranda should have continued her conservative treatment and received additional testing, instead of undergoing the fusion surgery. The expert also opined that Miranda had degenerative changes in her spine and that adjacent segment disease is a rare occurrence and likely would not result in Miranda’s case. The expert opined that as a result, Miranda would not need an additional fusion surgery. In addition, the defense’s expert opined that it was difficult to predict the nature and scope of the treatment Miranda may require in the future and that the plaintiff’s expert’s opinions regarding Miranda’s future medical treatment were speculative. While defense counsel conceded that Miranda may need future physical therapy, they disputed whether she would need three injections per year for the rest of her life. Counsel specifically argued that if the injections were ineffective, there would be no basis for Miranda to continue to receive them three times a year for the rest of her life. The defense’s billing expert opined that Miranda’s alleged past and future medical expenses were in excess of the reasonable value within the relevant community, and presented alternate values to the jury.
COURT
Superior Court of Los Angeles County, Pasadena, CA

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