Facts

On March 26, 2010, plaintiff John Doe, 23, was partying with a group of friends, about seven or more people, at a luxury rental building in Hollywood. The following day plaintiff was found floating face down in a swimming pool at the rental building, which had just been built. Plaintiff was taken to Cedars Sinai Hospital.

PLAINTIFF'S CONTENTIONS:
Despite many people including plaintiff's friends being present and drinking when plaintiff was found floating in the pool, none saw him enter the pool. Plaintiff contended he had no recollection of how he entered the pool. No witness could say where he entered the pool.

Plaintiff claimed that defendants failed to warn of the dangers of diving into a shallow pool. The pool, which had depths ranging from 2.5 to 4 feet, was unreasonably shallow for the setting. It also lacked markings on the deck that, even if not required by the building code when it was built, would have been good practice, and suggested by ANSI standards, such as multiple No Diving signs on fencing and on deck and depth markers at or above the water line. Plaintiff also contended that a standard temporary pool safety sign had been in place, made of cardboard, and had been removed after the inspector visited, which took place before the accident, and was then replaced by another sign which, even if code compliant, was in a location that was not as good, and was not as prominent.

Plaintiff claimed that he would have seen the temporary sign had its location not been changed and heeded it, even though he doesn't recall the day of the accident, and would therefore not have dived in, which is what he claimed he must have done in order to sustain the injuries he sustained. Even though he had no memory of that day and there were no witnesses. Although alcohol was served, plaintiff claimed that he had built up a tolerance, based upon significant alcohol use in the past. He recalled no cocaine use.

DEFENDANTS' CONTENTIONS:
Defendants claimed that the pool was 100 percent code compliant and that the ANSI standard was irrelevant, inadmissible, and did not establish a duty of care. Defendant contended that plaintiff could not prove his case because he could not prove how he entered the pool, whether he dove or how he was injured, and what he saw or would have seen as far as signage. Therefore, warning signs were irrelevant since this was not a diving case, and causation could not be shown. Defendant contended that plaintiff's claim of diving was pure speculation and could have been a trip, slip or fall, or some other means of entry such as horseplay. Defendants argued that the witnesses were plaintiff's friends and therefore their claim of not knowing what happened was questionable and suspicious. As such, there was no provable causal connection between depth markers or allegedly deficient signage placement, and the accident.

Defendants claimed that plaintiff knew the depth because he was standing in the pool in photos and that its shallowness was open and obvious, and he assumed the risk of recreational diving under California law. The pool was brand new, and fully complied with code. The building inspectors testified that they would have approved the pool, even if the temporary sign had been removed, so long as there was another permanent sign nearby, which there was on the day of the accident.

Medical records from Cedars Sinai showed a blood alcohol content of .19, over twice the limit for driving showing intoxication, and the presence of cocaine in plaintiff's system. Defendants argued comparative negligence and classic assumption of risk of unsafe activities.

Specials in Evidence

$103,000 (Medi-Cal lien)

Damages

The defense argued that plaintiff, a professional gambler, making seven figures annually, was out earning 99.9999 percent of the population, and therefore suffered no loss of earnings. He was getting by with the assistance of one non-professional caretaker, while flying around the world to tournaments, and thus his claims for a life care plan was exaggerated.

Injuries

Plaintiff was diagnosed as being permanently paralyzed due to compression fractures in the lower cervical spine and confined to wheelchair. He claimed he can move the upper body and ambulate his own wheelchair, but cannot walk. He also claimed he can get into and out of bed alone, but needs help showering and in activities of daily living. Plaintiff is a UCLA graduate working as a film industry intern.

Result

Plaintiff agreed to a settlement that included payment from defendant Roe Apartment Building, in the amount of $3,100,000. There was a related bad faith action and coverage action filed and those carriers stepped in to fund the settlement to an extent.

Other Information

Plaintiff obtained recovery through the limits of several insurance policies, including the tenant who invited plaintiff over to the apartment. The case settled after three years of litigation.