At around 2:30 p.m. on July 26, 2013, plaintiff Andrew Gerster, 48, a stay-at-home dad with a pre-existing left leg amputation, was eating lunch with his family at the In-N-Out Burger on Coleman Avenue in San Jose. While he was eating, In-N-Out employees placed a series of “wet floor” cones in various locations around the restaurant. Gerster then used his crutches to ambulate to the restroom and, shortly thereafter, returned to his seat. However, on his way back to his seat, the employees of In-N-Out start mopping behind him. The employees then mopped the area outside the restroom, where Gerster had just walked, while he was refilling his drink at the soda machine. As Gerster was leaving the restaurant with his daughter, he encountered the area that he had safely navigated approximately 60 seconds earlier and slipped and fell. He subsequently struck the ground, landing on his head and flat on his back. He was eventually able to get up under his own power and he did not complain of any pain to the manger, who took the report. However, Gerster later claimed that he injured his left shoulder in the fall. Gerster sued In-N-Out Burgers. Gerster alleged that the restaurant’s employees failed to properly clean and maintain the restaurant’s floors, and failed to warn of the wet floor, creating a dangerous condition. Gerster claimed that he was unaware of the floor behind him being mopped as he exited the bathroom and when he was refilling his drink. He also claimed that there was no “wet floor” cones in area of his fall warning of the danger. He alleged that as a result, he slipped and fell on the wet floor. The plaintiff’s expert safety engineer concluded that the restaurant’s floor was unsafe at the time of the incident and that In-N-Out failed to follow its own safety protocols that addressed the proper placement of wet floor cones before mopping. Defense counsel contended that the In-N-Out employees properly warned of the wet floor by placing the “wet floor” cones at various locations throughout the restaurant and that Gerster could be seen on video walking past a number of cones on his way to the restroom and again while returning to his seat. Counsel also contended that the employees properly dry mopped the area in question immediately after the wet mop and that four people walked in that same area without incident, as was shown by video, in between the completion of the dry mopping and Gerster’s fall. The defense’s biomechanical expert opined that the “wet floor” cones were not even needed, as the floor in the subject In-N-Out restaurant was “extremely slip resistant,” even when wet. Instead, the expert opined that Gerster’s incident was the result of a “miscrutch.”, Gerster claimed he sustained a torn rotator cuff of the left, dominant shoulder as a result of his fall at the In-N-Out restaurant. After the incident, Gerster returned to his home in Colorado. However, approximately 45 days later, he presented to an orthopedic surgeon with complaints of shoulder pain and was diagnosed with a torn rotator cuff. It was also determined that Gerster required surgery. Gerster ultimately underwent surgical repair in October 2015, over two years after the diagnosis. As a result of his pre-existing leg amputation, Gerster needed to be in a wheelchair for approximately three to four months while recovering. The plaintiff’s treating orthopedic surgeon concluded that the fall caused Gerster’s rotator cuff tear. The plaintiff’s retained physical medicine expert opined that Gerster would require three additional surgeries and further treatment as a result of the incident. The expert further testified that the reasonable cost of the alleged future treatment would exceed $350,000. Thus, Gerster sought recovery of past and future medical costs, and damages for his past and future pain and suffering. According to defense counsel, plaintiff’s counsel asked the jury to award Gerster over $950,000 in total damages, including over $350,000 in future medical treatment. Defense counsel contended that Gerster was able to get up under his own power after the fall and that Gerster did not report any shoulder pain to the manager who took the report of the incident. Counsel also contended that Gerster did not seek any medical treatment until 45 days after the fall, all the while he was ambulating on one leg and using two crutches. Thus, defense counsel argued that Gerster’s shoulder injury was not the result of the subject fall. The defense’s biomechanical expert opined that there was no mechanism of injury for a torn rotator cuff on a backward fall since Gerster did not put out his left hand behind him to attempt to break his fall, but fell flat on his back. In addition, defense counsel argued that Gerster was overreaching on his future medical claims and that Gerster’s delay in seeking surgery was a trial tactic designed to garner sympathy from the jury. Thus, defense counsel asked the jury to render a defense verdict on negligence and causation. However, counsel argued that if In-N-Out was found responsible for the fall, the jury should not award future medical costs for any alleged future surgery or treatment and that the jury should award less than $82,000 in total damages.