Facts

On Jan. 4, 2012 plaintiff Trang Duong, 34, slipped and fell due to spilled ice cream/water in the checkout stand of the Shun Fat Supermarket. Plaintiff was shopping at the market with her two sisters and sister-in-law. The incident and its aftermath were captured on the store surveillance video.

Plaintiff asserted that the sweep sheet showed that defendant breached its own policy of inspection every hour. That there was no recorded inspection within the hour and 20 minutes before plaintiff fell. The cashier was on a break. The store manager testified that the cashier was supposed to have closed off her register aisle and inspect the aisle before and after her break.

Although requested, no video footage was produced by the defense showing the footage 30 minutes before the incident. The video showed the janitor walked passed the aisle after his break seconds before plaintiff fell, looked at the aisle, and came back seconds later with the mop after plaintiff fell without anyone calling him to do that over the intercom. The cashier testified that the manager called for clean up after plaintiff fell using the telephone/speakers next to the cash register, but none of this was seen on the video camera footage. The video also showed that the bagger at the end of the aisle was waiving something in the air, asking plaintiff to identify the item. As plaintiff was looking at the item and walking towards it, she slipped and fell.

There was a store security report that stated that the cashier saw the ice cream, but plaintiff didn't and caused her own fall. The manager admitted that there was an ice cream shop next door and it is a usual occurrence that customers bring in their ice cream cups to eat while they shop. Plaintiff and her sister claimed they overheard the cashier say that a customer's child had spilled ice cream earlier and that she called for clean up, but that the janitor was on a break.

DEFENDANT'S CONTENTIONS:
The defense argued that the store personnel had no notice of the spill and that the check stand had been inspected less than 20 minutes earlier when the check stand was opened.

Settlement Discussions

Plaintiff demanded $350,000. Defendant offered $35,000.

Specials in Evidence

$11,000 $800,000

Damages

Plaintiff claimed $1.5 million for attendant care and asked for an award in excess of $5 million.

Injuries

Plaintiff had a pre-existing Chiari malformation of the brain that resulted in a large fluid filled cyst extending from her brain stem in her spinal cord down through her cervical and thoracic spine. This pre-existing condition affected the nerves in her arms and hands causing atrophy of her arm and hand muscles. Plaintiff had a 3.0 T MRI of her brain that showed evidence of iron, or blood in the area of the brain that is alleged to be damaged. Her medical records showed no evidence of any prior emotional or cognitive problems. The video showed alteration of consciousness as plaintiff was dazed and being held up by the bagger. Plaintiff claimed that her condition was manageable pre-accident without any cognitive complaints or emotional overlays. As a result of the accident and trauma to her brain, plaintiff claimed the onset of severe headaches, cognitive difficulties, increased memory loss and severe depression. She eventually underwent a craniotomy but claimed that due to her severe depression and cognitive difficulties she was unable to live independently and had to move in with her sister. Plaintiff alleged she now requires attendant care and rehabilitative therapy for the rest of her life. She claimed she is unable to manage her own affairs or care for her two minor children. The defense argued that plaintiff did not suffer an organic brain injury as evidenced by the emergency room records indicating no loss of consciousness and CT and MRI scans of the brain and head indicating no evidence of trauma or intracranial hemorrhage. The defense argued that none of the medical professionals treating plaintiff both before and after the accident for plaintiff's pre-existing Chiari malformation made a diagnosis of the brain injury. The subsequent brain MRI was not diagnostic of an intracranial hemorrhage because there was no evidence of trancranial hemorrhage on the day of the incident or on subsequent MRIs taken of plaintiff's brain. The neuropsychological testing was not diagnostic of a traumatic brain injury because there was no evidence of an organic injury to plaintiff's brain injury because there was no evidence of an organic injury to plaintiff's brain and plaintiff's symptom complex of progressively worse cognitive deficits without evidence of organic brain injury is not consistent with someone who had suffered an organic brain injury. Defense claimed that plaintiff's complaints of headache, cervical pain and lack of sleep were a continuation of her pre-accident symptom complex.

Result

Defense verdict.

Other Information

Motion for new trial denied on Feb. 6, 2015. FILING DATE: Feb. 22, 2013.

Deliberation

1.5 days

Length

11 days