Facts

On July 20, 2004, plaintiff Emilia Martinez, 46, and her daughter Esmeralda Martinez, 6, were sitting on the front lawn of their apartment complex when a large limb snapped off a tree 20 feet above their heads and came down on them breaking their legs and pinning them underneath. The falling limb also took out three electrical lines, which began flailing around. At the base of the limb that snapped off, there was a huge dry rot cavity, which had eroded the limb support and had become a home for 20,000 European Honey Bees and 50 pounds of honey. When the limb fell, the bees swarmed and attacked plaintiffs as well as those who came to rescue them.

PLAINTIFF'S CONTENTIONS:
The plaintiffs argued actual notice though the production of two impeachment witnesses at trial. One was a former tenant who testified that she complained to the manager on four separate occasions about bees around her balcony, and at least once about having the tree trimmed. The other impeachment witness was a former manager of the defendant who testified that he received those complaints and informed the property supervisor of the condition and even pointed out the bees to the property supervisor on one occasion.

The plaintiff also argued constructive notice based on defendants' testimony that no maintenance, trimming or pruning had been done to the subject tree in at least six years prior to the incident. Additionally, no reasonable inspections were done by anyone with proper knowledge to identify dangerous conditions on the tree during the same time period.

DEFENDANT'S CONTENTIONS:
The defendants contended they had neither actual nor constructive notice of the dangerous condition prior to the incident and, therefore, were not responsible. Even if they were found to be responsible, the defendants claimed that the neighboring property owner, contending that the tree trunk was equally on the adjacent property, and, therefore, owned in common, should equally share the responsibility.

The defendants claimed that the manager was fired for being incompetent and the tenant was evicted for being a nuisance. Both the firing and the eviction occurred some time after the defendants received notice of plaintiffs' claims.

The defendants contended that the property supervisor and himself did inspections, along with multiple tree vendors who visited the property to work on other trees and never advised them to do anything on the subject tree.

Settlement Discussions

The plaintiffs made a C.C.P. Section 998 pre-trial demand of $1 million for Esmeralda and $375,000 for Emilia Martinez. The defendants made a C.C.P. Section 998 pre-trial offer of $500,000 for Esmeralda and $150,000 for Emilia Martinez. The defendants made a pre-trial final offer of $750,000, global for both plaintiffs. The plaintiffs responded with a counter offer to settle the matter globally for $1 million.

Damages

Esmeralda Martinez: $350,316 ($125,316 past medical expenses; $225,000 future claimed expenses). Emilia Martinez: $134,473 ($67,473 past medical expenses; $67,000 future claimed expenses).

Injuries

Emilia Martinez suffered several lacerations, contusions and bee stings and also a shattered right foot which required open reduction and internal/external fixation. She later underwent a second surgery to remove the hardware. She had some orthopedic follow-ups and some minor arthritic changes and still complains of some continued pain. She also suffered post-traumatic stress disorder from the ordeal. According to plaintiffs' experts, she requires nutritional counseling for weight loss, aqua therapy, and psychotherapy in the future to help with her foot pain and emotional trauma. Esmeralda Martinez suffered a displaced right tibia fracture and a complicated, displaced left ankle fracture involving her tibia, fibula and talus. The left ankle required open reduction and internal fixation. Some of the hardware in the left ankle was subsequently removed. The left ankle fracture also crossed one of her growth plates, which started to cause some angular deformities in the ankle. In an attempt to avoid these deformities and/or a leg length discrepancy, the surgeons attempted to arrest the growth of Esmeralda's ankles in both legs, at the distal tibias and fibulas. This caused Esmeralda to have an additional three orthopedic surgeries. All surgeries were done at Kaiser. During the course of trying to arrest the growth of the plates at her ankles, there were some bones that continued to grow disproportionately. As a result, Esmeralda developed a 2 cm leg length discrepancy, and both her ankles angled inward and downward at clinically significant levels indicating the need for future surgical procedures. Additionally, it was also determined that the fracture of the talus in Esmeralda's left ankle caused avascular necrosis (dying bone) and as a result, may require her to undergo a total left ankle fusion in her teen years. As of present, however, Esmeralda is able to engage in all physical activities, including jumping rope, running a mile, and playing with only complaints of pain in her ankles after significant time engaging in these activities. Esmeralda also suffered from post-traumatic stress disorder and received counseling. She was home schooled for two months in first grade and had numerous absences and poor academic performance in grade school due to the numerous surgeries and emotional trauma associated with the accident. She was provided resource assistance, but never held back.

Result

Plaintiffs' verdict for $3,767,167. Emilia Martinez received $874,473 ($67,473 past medical specials; $57,000 future medical specials; $500,000 past generals; $250,000 future generals). Esmeralda Martinez received $2,892,694 ($125,316 past medical specials; $167,378 future medical specials; $1 million past generals; $1.6 million future generals).

Other Information

The plaintiffs entered into a good faith settlement with the defendants' neighboring property owner, Dong Cho, on which the tree trunk was equally situated prior to trial for $250,000 for Esmeralda and $150,000 for Emilia. The jury found non-party Dong Cho 15 percent negligent.

Deliberation

three hours

Poll

11-1 (for plaintiff on premises liability), 12-0 (for plaintiff on negligent infliction of emotional distress-bystander)

Length

3.5 weeks