Facts

Plaintiff was a 79-year-old man who fell down an open hatch leading to a wine cellar resulting in a moderate traumatic brain injury. Plaintiff was touring a house listed for sale at the time. He entered the home, walked down a narrow short hallway and wound up at the bottom of the wine cellar on the floor. There were no eye witnesses to the fall, so it was uncertain whether he did not see the open hatch door and fell in, and down the stairs , or if he saw it, and attempted walking down the stairs and lost balance and fell to the bottom. His wife and son were also in the house. They heard the fall and immediately went to his aid.

Plaintiff sued the property owner and the seller's real estate agent. At the time of the incident, there was already a pending offer on the property from a buyer whose agent happened to be on the property. Plaintiff sued that buyer's agent as well.

PLAINTIFF'S CONTENTIONS: Plaintiff contended that the open hatch door int he hallway leading down into a wine cellar approximately 9 feet below, constituted an unreasonably dangerous condition to prospective buyers who were unfamiliar with the house. Additionally, the unprotected edge of the opening in the floor constituting the hatch posed a foreseeable increased risk of harm. Additionally, there were no exterior rails for support or guards or warning, and the staircase itself was in violation of the building code and was dangerous and there were no hand rails. Defendants had actual knowledge of these unsafe conditions and failed to warn plaintiff and/or make them safe, and failed to supervise or escort plaintiff through that portion of the house where the dangerous condition existed. Plaintiff further contended that while he suffered from pre-existing mild cognitive impairment and had been proactively receiving neurological treatment and medications and therapy for approximately three years before this accident, that the MTBI aggravated and exacerbated his condition which accelerated the progression of his condition and made it worse.

DEFENDANTS' CONTENTIONS: Defendants contended that the condition was open and obvious, and that plaintiff was comparatively negligent. Defendants further contended that plaintiff's family members should have been escorting him through the house, and finally, defendants contended that plaintiff reached his baseline a few months after the accident and that his condition wasn't much worse than what it was before the accident, and to the extent it was, it was the normal progression of his preexisting condition which they argued was dementia and alzheimer's disease. Defendants further based their damages and causation contentions on recent neuro-psychological assessments which were performed on plaintiff just weeks before the accident which supported that his condition was getting worse.

The pending buyer's agent contended they owed no duty to plaintiff.

Specials in Evidence

Meds: Past Howell medical specials approximately $15,000; Past home health care nurse approximately $100,000

Damages

Past Howell economic medical specials approximately $15,000. Past home health care nurse approximately $100,000. Future economic loss uncertain due to pre-existing condition.

Injuries

Plaintiff suffered moderate traumatic brain injury. two small brain bleeds that resolved within one month. dislocated finger and abrasion to leg. aggravation and exacerbation of pre-existing age related mild cognitive impairment

Result

The buyer's agent was dismissed in exchange for a waiver of costs. The remaining defendants settled at mediation for $3,250,000.