Facts

Plaintiff Gisele Lavan alleged that in Nov. 8, 2002, she walked from Zellerbach Hall at 10:45 p.m. in the pouring rain to the Berkeley BART station. She alleged that she descended the stairs, stopped at the bottom, looked to see if the floor was wet, then stepped off of a rain-soaked mat and onto the wet terrazzo floor causing her to slip and fall forward onto her knees. The plaintiff fractured her left patella. The only witness to the accident was a homeless man asleep on the stairs.

PLAINTIFF'S CONTENTIONS:
The plaintiff contended that BART's shoddy inspection and cleaning practices led to her accident. The plaintiff alleged that the station was not cleaned regularly, that water could have flowed in that entrance, or that debris left on the floor could have clogged the drains causing the water to overflow and soak the mat on which the plaintiff stood. The plaintiff further contended that the defendant refused to take any meaningful responsibility for the injury to the plaintiff. Moreover, the plaintiff was able to demonstrate that BART was seriously understaffed, did not follow procedures that would have prevented the plaintiff's injury, and that the statements of the BART employees contradicted each other.

DEFENDANT'S CONTENTIONS:
The plaintiff failed to bring forth any credible evidence that the area at the bottom of the stairwell in question was wet at the time of the accident, or ever got any wetter than water from people shaking their umbrellas on the mat. There was testimony that the area in question was inspected regularly by various BART personnel. The BART Station Agent and BART Police Officer who reported to the scene both searched the area and found no water, nor any other condition which would cause the plaintiff to slip and fall as alleged. Further, the plaintiff's credibility was challenged by her own conflicting testimony and because the plaintiff had fallen five months prior to the accident sustaining a left patellar fracture. Nine days prior to the accident, the plaintiff had complained to her treating physician of intermittent buckling of her injured knee - the same knee the plaintiff fractured that night.

The defendant presented expert testimony stating that it was not pouring rain at the time of the accident and that the plaintiff could not have fallen forward down to her knees from a standing position as she had testified to in her deposition, and retracted at trial.

Settlement Discussions

The defendant rejected a $45,000 arbitration award by Joan Heidenreich, Esq. The defense made a C.C.P. section 998 offer of $5,001 two months before trial which was rejected.

Damages

The plaintiff demanded $135,000 during a pre-arbitration settlement conference. During trial, the plaintiff asked the jury to award $1.6 million in damages.

Result

Defense verdict. Defense was awarded $34,687 in costs.

Other Information

According to the plaintiff's counsel, "[d]efendant made the highly improper and prejudicial argument that if it hired the number of employees and followed the safety procedures suggested by plaintiff the cost to the consumer would be "Twenty Dollars a Ticket." Defendant further compounded the prejudice by arguing that taxpayers would end up funding any verdict paid out to the plaintiff. Although the judge admonished the defendant for both statements, they clearly impacted the jury. The damage was done, and no curative instruction could un-ring the bell. Plaintiff requested a new trial on the basis of these highly prejudicial statements, which was denied."

Deliberation

50 minutes

Poll

11-1 (in favor of BART)

Length

five days