Case details

Restaurant claimed no notice of floor’s dangerous condition

SUMMARY

$0

Amount

Verdict-Defendant

Result type

Not present

Ruling
KEYWORDS
elbow, fracture, neurological, reflex sympathetic
FACTS
On March 26, 2010, plaintiff Xochil Chavez, 32, an administrative assistant, was exiting a bathroom at the Market Broiler restaurant in Ontario, on her way back to the dining area, when she slipped and fell on the floor. Chavez sued Market Broiler Ontario Inc. She alleged that the defendant failed to properly maintain the area, creating a dangerous condition. Chavez claimed that she slipped on water. She alleged that there were inadequate inspection, maintenance and cleaning procedures at the restaurant, and that the floor itself, a hardwood floor that had an acrylic finish, was unreasonably dangerous because it was located in a high travel and spill area. Plaintiff’s counsel contended that the floor, when wet with even a small spill, was as slippery as ice, and that the restaurant chose the flooring for look and ease of cleaning over customer safety. Counsel also contended that no amount of inspection would have alleviated the hazard since spills are common and expected, but that the floor could have been treated at minimal costs, which would have eliminated the danger by making the floor safe, even when wet. Plaintiff’s counsel also argued that the restaurant should have kept sweep sheets for the restrooms and dining area, and that the restaurant fell below standards by not keeping sweep sheets for the dining area. Counsel asserted that the restaurant should have employed a full time porter, whose job would have only been to walk along the restaurant looking for spills and dangerous conditions. The plaintiff’s biomechanical engineer testified that Chavez’s fall was a classic slip and fall, and there were sufficient forces involved to cause Chavez’s claimed . The plaintiff’s civil engineering expert opined that the floor was unsafe due to its makeup and composition, and criticized the inspection and maintenance policies of the restaurant. The expert asserted that the defendant should have had sweep sheets for the dining area and had a porter. The civil engineer further opined that one could apply a coating that would not change the aesthetics of the floor and would also be slip resistant when wet. Defense counsel contended that Market Broiler’s inspection procedures were within the standards of the industry and that there was no notice of the alleged dangerous condition, as the employees on site after the accident claimed that there was no liquid on the floor and that the area was dry. Counsel further argued that the floor itself was not a dangerous condition. The defense’s expert mechanical engineer testified that the inspection procedures and maintenance of the restaurant were proper, and that there was no need for a full-time porter. The expert also opined that the floor itself was not an unsafe condition and that there was no coating that one could put on a floor that would make it slip resistant, as there were many on the market that the expert tested and reported unfounded claims., After the accident, Chavez was driven to a hospital by her boyfriend. The initial finding was a fracture of the right dominant radial head, and her arm was placed in a cast that day. A few months later, the wrist was looked at, after Chavez continued to complain of pain after her elbow was ruled out, and she was diagnosed with ulnar abutment syndrome. In September 2010, Chavez underwent a surgery to correct the shortening of the ulnar nerve. To this day, Chavez complains of pain. She claimed that she developed complex regional pain syndrome, also known as reflex sympathetic dystrophy or causalgia, a chronic pain condition, in her injured arm. She alleged that the condition was poorly diagnosed and treated, causing her to suffer a disability that would cause her a lifetime of chronic pain and the need for extensive medical care. She claimed that she initially took prescription pain medication, but it made her nauseous and that she now uses over-the-counter pain medications. Chavez further alleged that she is depressed as a result of the chronic pain and cannot do anything with her affected arm. Chavez continued to work after the accident, but claimed that her input was slow at work because she cannot type and her handwriting was bad. She alleged that she needs continued assistance in the home and at work, and that she could do virtually nothing with her affected right arm. The plaintiff’s expert orthopedist opined that the treatment of the radial head fracture and abutment was reasonable and necessary, but that Chavez would eventually require a cubital tunnel release, which would relieve her pain and has a 90-percent success rate. The plaintiff’s expert neurologist testified to Chavez’s CRPS. Additionally, the plaintiff’s expert pain management physician opined that Chavez would require a spinal cord stimulator to treat her CRPS and would eventually require an intrathecal morphine pump. The plaintiff’s life care planner testified that, based on Chavez’s physicians’ recommendations, the plaintiff would need a long-term care plan for the remainder of her life. Thus, the plaintiff’s economics expert testified that Chavez’s present cash value for future medicals was $2,043,000. Defense counsel accepted Chavez’s radial head fracture and ulnar abutment syndrome diagnoses, but argued that the plaintiff did not suffer from CRPS. Counsel contended that Chavez did not meet the criteria for CRPS as set forth by the American Medical Association, which states that eight out of 11 objective symptoms have to be diagnosed. Defense counsel argued that that Chavez only had three diagnosed symptoms, at most, and that her symptoms were inconsistent throughout her medical records. The defense’s expert neurologist opined that Chavez did not have CRPS, and her treatment and medical records did not meet the AMA’s criteria. The expert testified that there were inconsistencies in Chavez’s medical records as to what complaints were within the same exam, let alone from doctor to doctor. The defense’s expert orthopedist also did not believe that Chavez had CRPS, but agreed that a cubital tunnel release would resolve Chavez’s pain. In addition, the defense’s life care planner critiqued the plaintiff’s life care plan as being unnecessary and unreasonable as far as treatments and function. Thus, the defense’s expert economist testified that he believed Chavez’s present cash value for present medical care to be $278,000, if the jury believed that Chavez had CRPS.
COURT
Superior Court of San Bernardino County, San Bernardino, CA

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