Facts

On Sept. 26, 2004, the plaintiff, Teresa Estrada, a 64-year-old female slipped and fell on defendants' premises. The defendants contended that plaintiff had a past history of episodes of severe dizziness, type II diabetes, diabetic neuropathy, diabetic retinopathy, osteoarthritis, radiating back and hip pain when she came to defendant El Gallo Giro's Mexican-style food store.

After shopping for approximately 30 minutes, while wearing one-inch high-heeled shoes, the plaintiff testified she fell forward onto both of her knees but was unable to recall if her feet actually slipped. As she approached the floor, she testified that the area where she fell was "very clean, dry and well lit." This testimony was backed up by her best friend who added that the plaintiff had repeatedly walked through the area of her fall beforehand without any problems. According to plaintiff's counsel, the jury did not believe the allegations of defense counsel. The defense counsel stated that the jurors left immediately after the verdict without speaking to either side.

According to defense counsel, the defendant's supervisor testified she had inspected the area of the fall moments before and after the plaintiff's fall and confirmed the plaintiff's testimony that the area of the fall was defect-free. Additionally, there was uncontradicted testimony that there were two full-time janitors stationed to inspect and clean the floor at the time of the incident. According to plaintiff's counsel, the defendants' witnesses were severely impeached throughout the trial. The defendants provided contradictory interrogatory responses. The jury found that the floor was unsafe.

Defendants also contended that the plaintiff had not been taking her diabetes medicine for over six months prior to the incident. She would only admit to not taking her diabetes medications for four days prior to the incident. The plaintiff testified she had not eaten since noon the day before the incident. The very first blood sugar test taken several days after the accident revealed a level of 498. It also was revealed that the plaintiff had an eye surgery to repair a retinal tear the day before the accident, however, the plaintiff claimed it had no effect upon her ability to see. According to plaintiff's counsel, the jury did not believe the arguments of defendants' attorney. According to defense counsel, the jury never spoke with either side after the verdict.

According to defense counsel, the plaintiff was allowed to use party admissions from defendants' employees who told her the floor had been waxed right before Estrada's fall. Defense counsel argued against reversing the prior motion in limine, which had barred the plaintiff from introducing this hearsay from the unidentified persons alleged to be an employees. The defendants argued that the unidentified alleged employees were not “parties to the action” nor could it be shown that they were authorized to make such admissions.

After the defendant produced witnesses to counter this hearsay assertion, the plaintiff argued to the jury that the floor then should have been safely waxed as a matter of safety.

No medical specials were introduced. There was no testimony from the plaintiff's doctor or family members. The defendants contended the plaintiff testified to the use of different types of prescription medications up until the incident, as well as the occasional use of Tylenol at the present time.

The plaintiff used the defendant's medical expert Dr. Wagner at trial. The plaintiff's prior counsel failed to elect a liability expert. Additionally, the defendants contended that they did not use a co-efficient of friction floor expert due to the fact there was no defective condition.

These are facts according to defense counsel only. Plaintiff's counsel disputes the characterization of these facts.

Settlement Discussions

The defendants offered a settlement of $3500 which was withdrawn before trial. The plaintiff's prior attorney had accepted the settlement without the plaintiff's consent. Her new attorney sent a C.C.P. offer of $24,999.99.

Injuries

The plaintiff suffered a fractured patella.

Other Information

A motion for judgment notwithstanding the verdict and motion for new trial was heard by the court on Sept. 6, 2007. The defendants will appeal the verdict if the motions are unsuccessful. FILING DATE: May 1, 2006.

Deliberation

five hours

Length

five days