On May 5, 2010, at approximately 7 p.m., plaintiff Earl Avigdor, 50, an automobile broker, went to Sprouts Farmers Market in Chula Vista. Just after entering the market, he slammed/stubbed his right foot into the corner of a produce stand, fracturing his second right toe and his big toenail. Avigdor sued Sprouts Farmers Market LLC, alleging premises liability and negligence. Specifically, Avigdor claimed that Sprouts negligently constructed the produce stand on a plywood platform that was raised off the ground, and that this created a dangerous condition. Avigdor also initially named Ron Cohn, doing business as Henry’s Marketplace, as a defendant, but the claim against the party was not pursued. Sprouts claimed that the produce stand was an open and obvious condition. It also claimed that there were zero incidents reported in the 20 years the produce stand existed and that Avigdor simply wasn’t paying attention to where he was walking., Avigdor went to an emergency room on the evening of the incident and was diagnosed with a fracture of the right foot’s second toe. He also had the nail pulled back on his big toe as a result of the incident. As a result, Avigdor’s right foot was placed in a walking boot for a few weeks. Avigdor claimed that he had to miss one month of work following the incident and that he now has a mallet toe condition in his second right toe. He alleged that he can no longer run because the condition, as well as partake in other normal activities. The plaintiff’s expert orthopedist recommended that Avigdor undergo flexor digitorum longus tenotomy to address his toe’s condition. Thus, Avigdor sought past medical costs of $2,862 ($1,795 already paid by Sprouts), future medical costs of $20,000 and past lost earnings of $31,000. He also sought $1,000 a month for the rest of his life in pain and suffering damages. Defense counsel contended that Avigdor did not require surgery to treat his mallet toe, but that if he did chose to treat the condition, there were less expensive and less invasive alternatives. Counsel further contended that Avigdor had no documentation to support his alleged amount of lost earnings.