Case details

Plaintiff: Failure to properly clean produce spill caused fall

SUMMARY

$1802346.53

Amount

Verdict-Plaintiff

Result type

Not present

Ruling
KEYWORDS
knee, lateral meniscus, tear
FACTS
On Aug. 12, 2009, plaintiff Theresa Barnett, 59, a catering assistant, was shopping in the produce section of the Superior Grocers supermarket at the Covina branch. In an aisle near Barnett, an onion or potato fell out of a produce bin onto the floor. An employee walked by and picked up the onion or potato, and placed it back into the bin before leaving the area. Then, about 40 seconds later, Barnett walked over the area where the produce had been and fell. Barnett claimed she tore the meniscus of her right knee. Barnett sued the supermarket’s operator, Super Center Concepts Inc., alleging the defendant’s employee was negligent in the maintenance of area where the onion or potato fell, creating a dangerous condition. Barnett claimed that after her fall, she placed her shopping cart over the area, retrieved a different store employee, and asked him to clean up the mess on the floor. She claimed the employee then left the area, came back with a rag, and wiped up the area where she had fallen. Plaintiff’s counsel noted that the subject events were captured on video. The plaintiff’s safety expert opined that there were several deficiencies in the procedures implemented by the store’s employees and testified that the procedures even fell short of the store’s own safety manual. Defense counsel contended that there was nothing on the floor and that the employee had performed a reasonable inspection of the premises when she observed the item and tossed it back into the bin. Counsel also contended that prior to the fall, Barnett circled around the bin and walked over the same general area where the produce had fallen without incident. Defense counsel further contended that Barnett did not see anything on the ground, but merely thought she felt something slimy on her shoe. These contentions were supported by the defense’s safety expert. Thus, defense counsel argued that even if there was something on the floor, there was no evidence of when the item would have been put there and no prior notice to the store of any dangerous condition. Counsel also argued that the mechanics of Barnett’s injury did not support a slipping injury, but, instead, supported a tripping injury. The defense’s biomechanics expert also opined that it was not possible for Barnett’s alleged injury to have been the result of a slip. In response, plaintiff’s counsel argued that the videotape rebutted the defense’s position on safety in that the video showed that the original employee did not even look back down at the ground after picking up the produce. Counsel further argued that Barnett testified to seeing and feeling the mess on the floor, and that the video showed the later employee wiping down the area after Barnett fell. In addition, plaintiff’s counsel rebutted defense counsel’s position on Barnett’s alleged clumsiness on cross-examination of the defense’s biomechanics expert and argued that the video did not corroborate the expert’s claim that Barnett was turning to the right as she fell, which plaintiff’s counsel noted was essential and necessary to the defense expert’s theory., After the incident, Barnett finished her shopping, but she later drove to a hospital that night, underwent an MRI, and was diagnosed with a lateral meniscal tear of the right knee. She then returned to the store later that evening to fill out a report. After after conservative treatment failed to relief her pain, Barnett underwent a meniscectomy, which was performed by an orthopedic surgeon. After the meniscectomy, Barnett suffered two different falls: one at Albertson’s, where she fell on water on the floor, and another at home. Plaintiff’s counsel contended that, ultimately, the meniscectomy failed, largely because the size and complexity of the tear required almost the entire meniscus to be removed from Barnett’s right knee. Within three months, Barnett’s lateral joint line was showing advanced signs of arthritis and her knee began collapsing medially. At this time, a knee replacement was indicated and she ultimately underwent a total right knee replacement, on lien. She then had a lengthy post-surgical hospital recovery stay and an extended post-surgical physical rehabilitation process in 2012. Thus, Barnett claimed her past medical costs totaled approximately $150,000 and the cost of a future revision to her knee replacement will total about $100,000. Defense counsel argued that Barnett’s arthritis was pre-existing. Counsel also argued that it was only after the Albertson’s fall when Barnett’s knee worsened and her doctor began recommending a total knee replacement. Counsel also brought to the jury’s attention that Barnett initially dismissed her case against Super Center Concepts without prejudice about two months before trial. Defense counsel further noted that Barnett then refiled her claims in order to gain additional time for her attorneys to arrange for her to have a knee replacement on lien. Plaintiff’s counsel rebutted defense counsel’s pre-existing arthritis theories through the testimony of Barnett’s former human resources manager, at her former place of employment, where Barnett worked as a catering assistant. The work records and testimony demonstrated that Barnett was required to lift 25 to 50 pounds over her head, for up to 5 minutes at a time, while she was serving patrons in a large convention center dining hall. The work records also showed that Barnett only missed one day per year of work, on average, for the 4 years preceding the fall. Plaintiff’s counsel also cross-examined that defense’s orthopedic surgery expert by presenting the expert’s own independent medical exam and review of records reports, which revealed that the expert did not diagnose pre-existing arthritis even after two medical exams and 15 months on the case. Moreover, plaintiff’s counsel noted that the defense’s orthopedic surgery expert acknowledged, on cross-examination, that neither of the treating radiologists, nor the retained defense radiological expert, ever determined that there was any pre-existing arthritis in the case.
COURT
Superior Court of Los Angeles County, Los Angeles, CA

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