Facts

Suzane Perry tripped and fell over an uplifted asphalt in the street as she walked along Lake Drive in Cardiff by Sea. She suffered injuries to her right knee and back. She sued the city of Encinitas, which owned the public street, including Wayne and Mary Mitchell, who owned the house in front of the accident scene, for negligence and premises liability. Her husband sued defendants for loss of consortium.

PLAINTIFFS' CONTENTIONS:
Plaintiff contended that the city negligently maintained the street, thereby creating a dangerous condition of public property. She further contended that the Mitchells had a tree in front of their lawn that caused the uplift of asphalt on the public street, brought on by the tree's roots pushing through the concrete.

DEFENDANTS' CONTENTIONS:
Defendants contended that the alleged defect was not unsafe or a dangerous condition, or even if it was, it was an open and obvious condition and that plaintiff, who lived nearby, passed the same area several times prior to the incident. Defendants further contended plaintiff was comparatively at fault for failing to pay attention to where she was walking.

Damages

Perry sought $385,000 in total damages for past and future medical costs and pain and suffering.

Injuries

Perry was taken to the emergency room following the accident. She sustained a fractured patella in her right knee and underwent surgery and internal fixation. She underwent physical therapy on her knee. She further claimed soft tissue injuries to her lower back and minor lacerations to her hands and face. She continued to experience ongoing right knee pain and range of motion and mobility limitations, including limitations from dancing and other activities. Her expert opined that Perry was a candidate for future bone scaling and a partial knee replacement.

Result

The city settled with Suzane and Kirk Perry for $9,500 prior to trial. Kirk settled his consortium claim with the Mitchells for $1,000 prior to trial. The jury rendered a defense verdict on liability.

Deliberation

one hour

Poll

12-0 (liability)

Length

four days