Virginia Lawyers Weekly

This premises liability/personal injury action arose out of a slip-and-fall accident that occurred at the defendant’s apartment complex on Sept. 18, 2004. At approximately 11:30 p.m., plaintiff Jane Doe went to the apartment complex to visit her cousin.

While walking up the main sidewalk to her cousin’s apartment, plaintiff noticed that the sidewalk and adjacent lawn area were wet. She thought little of it and proceeded to go inside. After a short visit, the plaintiff left the apartment. She walked out of the front door and down a few steps to the sidewalk. When her left foot hit the sidewalk, it slipped and she fell to the ground, twisting and striking her left knee.

After the fall, the plaintiff discovered that algae was growing in the standing water on the sidewalk. She later learned that the problem had existed for some time. In fact, the plaintiff’s cousin had written to apartment management seven months before the fall asking that it investigate and fix the problem.

Plaintiff’s cousin again reported the problem two months prior to the fall. Maintenance records indicate that the defendant’s employees dug a small “trench” on either side of the sidewalk in an attempt to promote drainage. This was the only documentation that the defendant ever made an effort to address the drainage problem.

The cause of the problem was simple enough. Over the years, the sidewalk sunk down to the same level as the adjacent lawn area. As a result, water would run onto the sidewalk whenever the grass became saturated with rain. In addition, the downspouts from the building dumped water directly onto the flower beds and lawn areas close to the sidewalk. This compounded the problem. When the rain water pooled on the sidewalk for an extended period, algae developed.

As a result of the fall, the plaintiff sustained severe orthopedic injuries to her left knee and plaintiff underwent four surgeries for them. The surgeries were successful and the plaintiff’s knee is mechanically stable.

However, she suffered a complication following the second surgery. According to her treating orthopedic surgeon, the plaintiff developed saphenous neuritis (irritation of the saphenous nerve) as a result of inflammation and scar tissue that developed post surgery. To compound matters, the plaintiff’s saphenous neuritis progressed into reflex sympathetic dystrophy (“RSD”) and resulting chronic pain.

Plaintiff underwent a number of treatment options in an effort to control her pain including prescription medication, physical therapy, aquatic therapy, sympathetic nerve blocks, and implantation of a spinal cord stimulator.

Plaintiff’s past medical bills totaled $241,671.03. Future medical expenses (physical therapy, sympathetic nerve blocks, and pain medication) amounted to $1,044,660. As a result of plaintiff’s diagnosis with RSD, she was no longer capable of working at her former production job with Philip Morris and was forced to look for sedentary work. Future wage loss projections totaled between $503,335 and $4,423,047, depending on a number of assumptions.

The defendant argued that the plaintiff was contributorily negligent for failing to see the algae prior to her fall, especially in light of her admission that she saw the water on the way inside the apartment.

The plaintiff’s damages were also hotly contested. In particular, the defendant argued that the pain and numbness experienced in her legs (and thus any future medical treatment and future wage loss) was caused by diabetic neuropathy (related to her long-standing and poorly-controlled diabetes) as opposed to her accident-related injuries. The defendant identified two expert witnesses to support this claim. Both were board-certified physicians specializing in physical medicine and rehabilitation. The case settled during mediation.

[09-T-077]

Type of Action: Personal injury – premises liability
Type of Injuries: Left knee injuries, saphenous neuritis, reflex sympathetic dystrophy, chronic pain
Name of Case: Confidential
Court: Confidential
Tried Before: Mediation
Name of Mediator: John M. OBrion Jr.
Date: Nov. 12, 2008
Special Damages: Medical bills - $241,671; future medical bills - $1,044,660; future wage loss - $503,335 - $4,423,047
Verdict or Settlement: Settlement
Amount: $1,950,000
Attorney for Plaintiff: Jason W. Konvicka, Richmond

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