On April 12, 2018, plaintiff Tadayuki Furui, 40, a chef, was helping his girlfriend, Georgia Rew, clean a chandelier at a mezzanine/loft in Rew’s salon, The Pretty Pretty Collective, which was located in a building at 3290 22nd St., in San Francisco. Furui leaned against what appeared to be a guard or railing, but upon leaning against it, it opened, and Furui plummeted more than 10 feet to the floor below. Furui sustained to his face, head, neck, back, chest and a shoulder. Furui sued Rew, as the building’s tenant and as doing business as The Pretty Pretty Collective; the entity that owned the property, Cutler Properties, LLC; the principal of Cutler Properties, Carol Ray; the property management company for Cutler Properties, Real Management Co.; and the owner of Real Management, J.J. Panzer. Furui alleged that the landlord, property manager and their respective principals had a non-delegable duty to maintain premises in safe condition, but that they failed to do so, creating a dangerous condition. He also alleged that Rew was negligent for failing to warn of the dangerous condition. Furui’s counsel contended that, prior to Rew becoming a tenant of the building, the mezzanine/loft was inaccessible, but that Rew obtained permission in writing from Cutler Properties and Real Management to refurbish the mezzanine/loft area. Counsel contended that Rew removed walls in that area, which had previously prevented anyone from falling, and, instead, placed rails that were modified to appear as a gate, which is what Furui fell through. Plaintiff’s counsel asserted that Rew did not warn Furui of the modification, which was not in compliance with the California Building Code, as the converted gate would not withstand weight-bearing loads required by the building code. Counsel also asserted that the dangerous condition was created by Rew, under the permission of the owners and property managers, without supervision, and that Rew failed to obtain a permit from the City and County of San Francisco. In addition, plaintiff’s counsel asserted that even if Rew had warned Furui, the preexisting rail was also not in compliance with the California Building Code. Ray, Cutler Properties, Panzer and Real Management contended that they had no duty to inspect the location under inapplicable legal authorities that did not address the non-delegable duty doctrine.  They also contended that they had a lease agreement with Rew wherein Rew agreed to defend and indemnify the property owners and property managers. Their counsel further contended that Rew admitted in deposition that she was obligated to defend and indemnify the owners and property managers. (The contractual indemnification/defense agreement was the subject of summary judgment, though the case resolved prior to the motion for summary judgment being heard.) Rew claimed that the rail, which was functioning as a gate, was secured by a small latch and eye-hook, making it an open and obvious condition. In response, Furui claimed that he never saw the small latch and eye-hook. Furui’s counsel contended that even though Cutler Properties and Real Management had written indemnity from Rew in the lease, they had their own insurance coverage., Furui sustained a moderate traumatic brain injury, as he was not following commands of the emergency medical technician at the scene. Furui also had a skull fracture; an occipital condyle fracture; intracranial bleeding; a herniated cervical disc at the C5-6 level; neck fractures; a clavicle (collarbone) fracture; thoracic fractures at T4, T5 and T6; a scapula fracture; multiple fractured ribs; and a collapsed lung (pneumothorax) with pulmonary contusions. He was taken to Zuckerberg San Francisco General Hospital and Trauma Center, in San Francisco, where he was admitted from the date of the accident until April 17, 2018. While at the hospital, Furui underwent a head CT, which showed a skull fracture extending through the orbit and sinuses, and a small, right, frontal epidural hematoma. It was also determined that Furui had approximately 20 hours of anterograde amnesia. However, other than a procedure to install a chest tube for the pneumothorax, he was treated conservatively throughout his stay. Furui later underwent reparative surgery to fix the right scapular fracture with the use of plates and screws at a Kaiser facility on April 25, 2018. He also attempted to treat his cervical condition conservatively and used a few cervical collars. However, he remained in a hard cervical collar for six weeks, which healed his occipital condyle fracture and spinal cord damage at C5-6. Furui also went through rehabilitation for the to his back, shoulder, scapula and neck. In addition, Furui engaged in breathing exercises for five months to improve his lung capacity strength, but, otherwise, the rib fractures, pneumothorax and pulmonary contusions healed without residuals. Furui claimed he had spinal cord compression syndrome in the weeks to months after the incident and that he had extensive bruising in and around the affected areas. He also claimed he continues to suffer from anosmia (a loss of smell), as well as lumbar and cervical radiculopathy, and chronic radicular pain to his lower back. (The CT scan taken on the date of accident showed a spur at C5-6, but the MRI report on July 25, 2018, showed possible myelomalacia or cord injury.) In addition, Furui claimed that he is left with a scar on his shoulder and a small puncture wound in the chest, where a pigtail catheter was inserted. Furui alleged that he continues to suffer pain with any overhead reaching, lifting or attempt to throw a ball. He also alleged that he suffers from shoulder weakness with any overhead work and that he cannot hold his right arm above shoulder level for more than a few moments. Furui claimed that the pain to his shoulder and neck triggers migraine headaches, dizziness and nausea and that he now tires more easily. He alleged that he also continues to experience episodic tingling and numbness in his toes, hands and fingers, which can last from a few hours to a whole day, and which will occur once or twice every other week. Furui claimed that his condition is associated with spreading tightness and stiffness in his neck. In addition, Furui claimed that he has developed a fear and anxiety of heights, and anxiety when driving for fear of accidents or physical impacts. Although Furui returned to work quickly and ultimately went to work at a restaurant opened by his former wife, he claimed that his loss of smell will have some impact on his career as a chef. The plaintiff’s expert neurological surgeon wrote a report opining that Furui will possibly need future spinal fusions and two other spinal surgeries in the future.  Furui sought recovery of $156,233.95 in past medical costs and an unspecified amount of future medical costs. He also sought recovery of damages for his past and future pain and suffering. Defense counsel contended that, after the April 25, 2018 surgery, Furui underwent physical therapy and did relatively well and that the last note reflected some limitations in range of motion, but no significant limitation on activities of daily living for his right shoulder. Counsel also contended that the spinal surgery clinic had discussed a single level fusion at the C5-6 level with Furui, but that the surgery was never scheduled. Counsel contended that as a result, Furui’s last treatment was on Oct. 18, 2018. Defense counsel asserted that any treatment received after Oct. 18, 2018, appeared to be litigation driven, and not related to the Furui sustained in the subject accident. Specifically, defense counsel contended that on June 2, 2020, Furui sent an email to his primary care physician that his attorney and his consulting medical expert told him that he needed a new MRI and a "neuropsych assessment" to see if he is suffering from residual effects of a traumatic brain injury. Additionally, counsel contended that, in December 2020, Furui told his orthopedic physician that he had daily shoulder pain and that he had been working on his lawsuit and needed to define his body condition and future potential problems. However, defense counsel asserted that the subsequent neuropsychological testing revealed that Furui was within normal limits and had no evidence of cognitive difficulties. Thus, counsel asserted that Furui does not meet the criteria for a neurocognitive disorder. In addition, defense counsel asserted that Furui’s self-reported symptoms of post-traumatic stress disorder do not indicate a diagnosis of PTSD and that Furui’s brain MRI in 2020 was normal.  Defense counsel noted that Furui was working part-time as a line chef since 2014, as the records received do not go any further back. Defense counsel also noted that after Furui’s rehabilitation, Furui went to work with his ex-wife at her café in North Beach and that Furui is now working full-time. The defense further noted that Furui appears to be the manager and started his new full-time position in October 2019, earning $24 per hour, plus tips. Defense counsel contended that on July 16, 2019, Furui asked his doctor, via an email, to help him fill out the Employment Development Department form, while the period of disability is identified as April 12, 2018 until Nov. 1, 2018, or 6.5 months of disability. In addition, defense counsel asserted that allegations of future treatment — including orthopedic evaluations, physical therapy, repeat imaging and/or hardware removal — was speculative.