Facts

Plaintiff Janice Russell was leaving the Marin County Fair, walking in a lawn area during the fireworks display. She stepped into a hole with one foot, then into another, larger hole with her other foot, and fell. She sued the county for having a dangerous condition on public property.

PLAINTIFF’S CONTENTIONS:
The plaintiff claimed she had to walk through a long, narrow, grassy area with limited lighting to get to her car because the safer route was temporarily barricaded. She stated the holes she fell in were about six inches in diameter, and created by gophers. She contended that county was aware of their presence, but failed to curb their digging of holes. She further argued that the county failed to warn the public about the danger posed by the holes and prevent access to the lawn area at night.

DEFENDANT’S CONTENTIONS:
The defendant agreed that the holes were made by gophers, but stated that gopher holes are usually no larger than one to two inches in diameter and normally do not pose a hazard for pedestrians. It pointed out that gophers create a hole in less than 10 minutes, and tend to fill their holes almost immediately to thwart predators. It claimed the holes were hidden defects and natural conditions, and that it was impossible for the county to give notice of the constantly appearing and disappearing holes. Gophers are native to the area and tend to inhabit grassy areas. It stated that it performed four to five safety inspections of the lawn on days when activities are planned, and the gopher mounds are leveled weekly by a mowing system.

The county denied having notice of the holes and was unaware of their presence where the plaintiff fell. The county claimed it should receive immunity. The county is not permitted to poison them, so it continually traps the gophers in an effort to eradicate them.

Settlement Discussions

The plaintiff requested $15,000; the defendant offered $5,000.

Specials in Evidence

$23,000 for the surgery, MRIs, medicine and physical therapy $56,000 $5,000

Damages

The plaintiff presented evidence that she has lost 10% of her ankle's range of motion. She sought $150,000 for her pain and suffering.

Injuries

The plaintiff sustained a bimalleolar fracture of her right ankle and underwent surgery to fasten a plate to her ankle bone.

Result

The jury found that the lawn was not a dangerous condition.

Deliberation

1.5 hours

Poll

11-1 (dangerous condition of public property)

Length

three days