Facts

On July 23, 2008, plaintiff Lilly Dakic, a 49-year-old pest technician was working at Smeltzer residence for pest control maintenance. During the course of performing plaintiff's work, she suddenly and unexpectedly fell through a hole in one of the deck planks. She fell with one leg extending completely through the opening all the way up to her crotch.

At the time of the incident, defendant Stephen Smeltzer was home. Although he did not see the incident, he heard plaintiff fall and spoke with her prior to her leaving the property.

Plaintiff brought this action against defendant based on premises liability including, but not limited to, Rowland v. Christian (1968) 69 Cal 2d 108 and California Civil Code section 1714.

At the time of the incident, Zap Termite and Pest Control Inc. employed plaintiff. As such, she filed workers' compensation claim.

PLAINTIFF'S CONTENTIONS:
Plaintiff claimed that the premises was in a dangerous and defective condition; that she was not warned of the condition and that said condition was the proximate cause of her injuries and damages.

Plaintiff alleged that on the date of the incident, Stephen Smeltzer never informed plaintiff of the condition nor did he place any warnings, signs, barricades, caution tape, or other blockades. Plaintiff denied that there was any garbage pail blocking the stairs. In fact, the garbage pail cannot physically block the entirety of the stairs in any event.

DEFENDANT'S CONTENTIONS:
Defendants contended the employer knew the slat was broken and failed to tell its employee, who was new to this route. Defendant also contended the slat was open and obvious to anyone using due care when on the deck. Defendants contended plaintiff overstated her injuries.

Settlement Discussions

At the mediation held on Jan. 5, 2011 with Michael Stenson, Esq., plaintiff demanded $500,000 policy limits, while defendant offered $200,000 global. After the mediation, defendant settled with workers' compensation carrier for $95,527 and the complaint-in-intervention was dismissed on May 4, 2011. On Oct. 27, 2011, plaintiff extended a CCP 998 offer to compromise for the balance remaining of the $500,000 policy limits after the amount of money previously paid and/or presently deductible from the $500,000 policy limits for the workers' compensation lien/subrogation claim was deducted.

Damages

$638,470 ($244,530 medical and related expenses; $68,940 loss wages; $250,000 general damages for pain and suffering; $25,000 future medical; $50,000 future lost wages).

Injuries

Plaintiff suffered injuries to her neck, left shoulder, arms, hands, lower and upper back, left leg and left foot. She was diagnosed as suffering from rotator cuff tear; a torn labrum and shoulder impingement; cervical radiculitis; compression radiculitis and other symptomatology; peroneal nerve injury with numbness of the left leg, right paracentral disc herniation/extrusion at L5-S1, which was impinging on the right S1 nerve root. On Dec. 7, 2009, she underwent subacromial decompression, resection of the acromioclavicular joint, open repair of the rotator cuff and resection of the superior labrum. On May 23, 2011, she underwent muscle sparing anterior abdominal retro-peritoneal approach for anterior lumbar interbody fusion; mobilization of the left iliac artery; mobilization of the left iliac vein; and exposure to anterior surface of the spine.

Result

The case settled for $250,000.

Other Information

FILING DATE: May 4, 2010.