JAmes Voland v. Velvet Grill et al.
Published: Feb. 8, 1997 | Result Date: Jun. 4, 1996 | Filing Date: Jan. 1, 1900 |Case number: 54001 – $0
Judge
Court
Sutter Superior
Attorneys
Plaintiff
Defendant
John P. Hallissy
(Sacino, Bertolino & Hallissy PC)
Thomas W. Barth
(Barth Daly LLP)
Experts
Plaintiff
Milo D. Bell
(technical)
Leslie Konkin
(medical)
Defendant
Harry A. Khasigian
(medical)
Facts
On Sept. 24, 1992, plaintiff James Voland, a 44-year-old deliveryman, was delivering ice cream to the defendant Velvet Grill restaurant located in Yuba City. The plaintiff parked his truck in the rear parking lot of the stirp mall where the Velvet Grill was located. The strip mall was managed by defendant Wells Fargo Bank in its role as trustee of a trust. The plaintiff placed 32 three-gallon tubs of ice cream, weighing a total of 800 pounds, in an ice cream rack and began moving toward the rear delivery door of defendant Velvet Grill. While nearing the rear delivery door, the plaintiff pulled back on the ice cream rack in order to lift the front wheel. The rack, with its 800 pounds of ice cream, fell on the plaintiff, breaking his right ankle. The plaintiff brought this action against the Velvet Grill and Wells Fargo Bank based on negligence and premises liability theories of recovery. The plaintiff-in-intervention, Liberty Mutal Insurance Company, had paid approximately $61,000 in workers' compensation benefits to the plaintiff, and filed a complaint in intervention to recover the funds expended.
Settlement Discussions
The plaintiff made a C.C.P. º998 settlement demand for $100,000. Defendant Wells Fargo made a settlement offer of $5,000. Defendant Velvet Grill made a C.C.P. 998 offer of compromise for $5,000.
Specials in Evidence
$33,000 $17,000 $ _______ $ _______
Injuries
The plaintiff alleged that he sustained a fractured right ankle, requiring internal reduction and fixation. He also suffered an abrasion.
Other Information
The verdict was reached approximately three years after the case was filed. SETTLEMENT CONFERENCE: A settlement conference was held before Judge Timothy Evans. It did not resolve the matter. EXPERT TESTIMONY: The plaintiff's safety engineer expert, Milo Bell, testified that there were elements of the parking lot area and doorway which should have been improved; that he had performed previous tests on very similar racks, and they are inherently stable if properly loaded, although if improperly loaded, they can become unstable; and that the plaintiff, who had been delivering icre cream since he was 17 years old, should have known the balance point on the rack. Bell also testified that the plaintiff pulled back on the rack too hard, causing it to fall on him. The plaintiff's medical expert, Dr. Konkin, testified that the plaintiff fractured his right ankle as a result of the accident; that when he saw the plaintiff the day after the accident, he refused to operate because the plaintiff had an open abrasion more than six hours old, and that he advised the plaintiff to wait until the abrasion healed undergoing an internal reduction and fixation. Dr. Konkin also testified that he believed it would take approximately one week for the wound to heal. (It took over four months.) Dr. Konkin further testified that the only cause he could think of for the delay in the wound's healing was that the plaintiff was a heavy smoker. The plaintiff's medical expert, Dr. Nyack, testified that he had examined the plaintiff one time in October 1993, as an agreed medical examiner in a workers' compensation action, and that he believed that the plaintiff would have problems with arthritis, and would probably need an ankle fusion sometime in the future. Defense medical expert, Dr. Khasigian, testified that he performed an independent medical examination on the plaintiff in 1994, and reviewed x-rays which Dr. Nyack had not done. He also testified that the plaintiff would have some arthritis in the future, but not the malignant type that would warrant a fusion. The waitress who was on duty at the Velvet Grill at the time of the accident testified that immediately after the accident, the plaintiff said that ice cream cart had fallen on him because he had overloaded it.
Deliberation
1+ hours
Poll
9-3
Length
4 days
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