On Nov. 3, 2015, the plaintiff, 59, was picked up by his octogenarian father outside of his apartment building. Because of the plaintiff’s co-morbidities, including a prior stroke, toe amputation, and pancreas and kidney transplants, he did not drive.
The plaintiff’s father parked his vehicle in front of the apartment building’s leasing office so that the plaintiff could place his rent payment into the drop box located by the sidewalk. The plaintiff exited the vehicle and walked toward the rent drop box. There, the plaintiff observed a sign on the drop box which instructed rent to be paid inside the leasing office.
To enter the leasing office, pedestrians were required to ascend a five-step exterior stairway. Prior to ascending the stairway, the plaintiff observed two-foot wide flowerpots at the front corners of the landing located at the top of the stairs. Because the plaintiff had ascended the stairway in the past, he understood that he would not be able to hold on to the handrail during the entirety of his ascent.
Subsequently, the plaintiff attempted to ascend the stairway, by using a handrail, to enter the building. When the plaintiff reached the flowerpots, he let go of a handrail and maneuvered around it. As the plaintiff ascended the last step, he lost his balance and fell forward onto his knees. The plaintiff was taken to the emergency room and was diagnosed with non-displaced bilateral knee fractures. Because of his co-morbidities, including an immuno-suppressive state from his anti-rejection transplant medications, the plaintiff’s orthopedic surgeon planned to treat the fractures through non-operative management. Three weeks after the fall, the plaintiff’s orthopedic surgeon documented that his fractures had become displaced because the plaintiff was noncompliant with his restrictions. Subsequently, the plaintiff underwent multiple surgeries that were further complicated by numerous infections and pressure ulcers. Over the course of his treatment, the plaintiff’s providers documented other instances of non-compliance.
In June 2016, the plaintiff filed his complaint and alleged that the building owner and property manager were liable for negligence and negligence per se.
The defendants contested liability and the location of the flowerpots. In response to the plaintiff’s written discovery, the defendants produced photographs of the flower pots in the back corners of the landing, away from the stairs. During the defendants’ employees’ depositions, two employees testified that the flower pots were located in the back corners of the landing.
One employee testified they were kept in the middle of the landing. One employee testified that the flowerpots are kept on the front of the landing during the summer and fall and are moved to the middle of the landing in the winter. After depositions, the plaintiff conducted a site inspection of the premises. Subsequently, the plaintiff produced the site inspection’s photographs with various measurements. The plaintiff also produced multiple months of surveillance photographs which depicted the flowerpots in the front corners of the landing. The plaintiff designated a biomechanics expert to opine that the cause of the plaintiff’s fall was a combination of the shifts in weight from laterally moving around the flowerpot and ascending the last stair.
Two months later, the parties mediated the case. During the mediation, the defendants claimed that they were not liable for the plaintiff’s injuries and argued that the plaintiff committed contributory negligence, assumed the risk of his injuries, and failed to mitigate his damages. Ultimately, the defendants’ primary insurance carrier tendered their policy limits, $1,000,000. Their excess carrier paid an additional $250,000. The plaintiff’s Humana lien was compromised to $142,035.76.[17-T-106]
Type of action: Premises Liability
Court: Roanoke County Circuit Court
Name of mediator: Judge Thomas Shadrick
Date resolved: April 27, 2017
Special damages: Prior to alleged noncompliance with physician’s restrictions: $45,310.94. Total special damages: $956,794.19
Verdict or settlement: Settlement
Attorney for plaintiff: Anthony Segura, Roanoke