Facts

In September 2012, plaintiff Virginia Emmons, 57, was walking from the parking lot of a shopping mall in Yucca Valley towards a women's clothing store with her daughter. In order to avoid traffic, she walked towards the parking stalls, and up and over a raised traffic island, or planter. She stepped up a normal sized curb (approximately 6 inches) walked across the traffic island (approximately 4.5 feet) and testified that she looked down as she stepped off the traffic island. Plaintiff immediately fell and broke her ankle in multiple places

PLAINTIFF'S CONTENTIONS:
Plaintiff contended she stepped off the island into the slope of a storm drain that was 13 inches in height and almost quadruple what the Yucca Valley City Standards allow for such storm drains. Plaintiff claimed that during the entire six years defendant owned the property it never did any inspections for dangerous conditions, nor did follow-up with its property manager or require him to conduct such inspections. The storm drain was in violation of the Yucca Valley standards and the defense expert agreed. Plaintiff's injuries and medical bills were not in dispute. Plaintiff explained to the jury that her prior dizzy spells were due to menopause and that she had not had any in years.

Defense claimed plaintiff was clumsy, but presented no evidence of this, and was indirectly referencing her weight, as she was 250 pounds.

DEFENDANT'S CONTENTIONS:
Notwithstanding any deficiency in any city standards or codes, defendant claimed that the storm drain was open and obvious. Plaintiff assumed the risk of injury in walking through a raised planter. If she were paying attention to where she was walking, she would have noticed the drain. This was especially true where plaintiff asserted that based on her 22 years of service in the Marines she developed "situational awareness", to alert her of dangerous conditions.

In response to plaintiff's contention regarding the placement of a guardrail, defendant presented evidence establishing that the presence of a guardrail would have been in violation of the Fire Code, where the planter in which plaintiff walked had a fire hydrant. Finally, defendant asserted that plaintiff assumed the risk of injury and that she was comparatively at fault for her injuries and damages.

Impeachment evidence was also presented about plaintiff's physical and emotional injuries and the effect of the incident on her marriage. Regarding the former, medical records reflected that plaintiff's present complaints existed prior to the incident. Additionally, court records established marital issues which pre-dated plaintiff's incident.

Settlement Discussions

Defendant made a CCP 998 offer to compromise for $350,000. Prior to trial, according to defense, plaintiff made a CCP 998 offer for $1.5 million.

Specials in Evidence

$95,169 $33,480

Damages

According to defense, plaintiff sought damages of $33,480 in loss of earnings, $65,759 in past medicals (stipulated), $76,650 in past medicals (home health care), $27,000 in future medicals, $1.8 million in past non-economic, and $1.4 million in future non-economic.

Injuries

Plaintiff suffered a broken right ankle that a surgery with a metal plate and 13 screws. Due to an infection on the surgical wound, plaintiff had outpatient surgery to remove a screw that was thought to be causing the infection (approximately seven months after original surgery). A few weeks later, a third surgery was required to remove all the hardware from her ankle and a MRSA staph infection was found. Plaintiff remained in hospital for nine days to treat for the MRSA. She was eventually cleared to drive and return to work in September of 2013, a year after the fall. Plaintiff is a former Marine of 22 years, has a master's in psychology and is a currently a family therapist.

Result

Plaintiff received a total verdict of $838,649, which included $33,480 in loss of earnings, $95,169 in past medicals, $360,000 in past non-economic, and $349,999.98 in future non-economic. No future medicals were awarded. The verdict award was reduced to $628,987 based on the jury's determination of 25 percent fault for plaintiff's contributory negligence, assumption of risk for walking over traffic island.

Other Information

FILING DATE: Oct. 16, 2013.

Deliberation

six hours

Length

six days