National General Liability Practice Update - July 2020

(July 28, 2020) - We are pleased to report that our General Liability Practice attorneys around the country have been busy achieving a variety of successes for their clients in the first half of the year, including defense verdicts in potentially seven to eight figure exposure trials in some of the most plaintiff-friendly venues in the country.

In a particularly notable matter, our California team was brought into a case involving a traumatic brain injury only two weeks before trial and went on to obtain a defense verdict in a plaintiff-friendly courtroom against a jury demand of $12 million. In another impressive performance, our Chicago team successfully resolved a decade-long double wrongful death case in less than six months by working efficiently with key witnesses and using sharp post-mediation strategies. 

We realize that, as a result of the ongoing pandemic, courts across the country are adjourning most trials, but our General Liability team remains busy, working to get cases settled on the most favorable terms for our clients, while also preparing for trial those cases that cannot be resolved for when the courts do re-open.

Continue reading to learn more about the outstanding results our attorneys have recently achieved on behalf of their clients and why this group of over 450 talented lawyers nationwide continue to excel in the litigation of catastrophic injury, wrongful death, and complex significant exposure matters each day. Visit our General Liability Practice page to find an attorney in your area.

Trial Victories

California Team Secures Defense Verdict Against $12 Million Demand in TBI Jury Trial

Walnut Creek Partner Shawn A. Toliver, assisted by San Diego Partner Ryan Nilsen, recently obtained a defense verdict in a three-week jury trial involving a traumatic brain injury (TBI) claim. The plaintiff had slipped and fallen down the stairs at Horton Plaza Mall in San Diego, and alleged a variety of orthopedic injuries and a TBI, which she alleged prevented her from working for 13 months, and which necessitated a number of medical surgeries. She brought suit against the mall owner, mall manager, security company, and our client, ABM, a janitorial services company. The plaintiff’s daughter also presented a claim for emotional distress from seeing her mother fall down 16 stairs.

We were brought into the case less than two weeks before trial, and faced a difficult court setting, with the judge giving every benefit of the doubt to plaintiffs’ counsel. The plaintiffs settled with the security company and mall management company prior to trial, and settled with the mall owner on the morning before opening statements for $1.25 million. The mall owner reserved indemnity rights against ABM. The plaintiffs issued a demand for ABM’s self-insured retention (SIR) and both excess policies. The plaintiffs requested that the jury award $12 million in damages. After only a couple hours of deliberation, the jury returned a full defense verdict.

Miami Team Obtains Jury Verdict in Truck-Pedestrian Collision Matter Involving Serious Injuries and $13 Million Demand

Miami Managing Partner Todd R. Ehrenreich and Partners Noel F. Johnson and Kathryn L. Ender obtained a complete defense verdict in a personal injury action in Florida involving a pedestrian who alleged that he was struck by a truck while walking on the shoulder of a busy street. The defense asserted that the 31-year-old truck driver attempted to cross a busy street in the dark to get to a gas station. The plaintiff suffered multiple broken ribs, a fractured femur, numerous abrasion and cuts, drop foot, and renal failure. As a result of his injuries and preexisting conditions, the plaintiff was placed in a medically-induced coma for over 40 days. During this time, his kidneys rapidly deteriorated and failed. He was subsequently advised that he would need a kidney transplant and has been placed on the waiting list. The plaintiff has not worked since the accident in February 2018.

Surveillance video footage from a nearby bakery captured the plaintiff exiting his truck and walking along the shoulder of the road before pausing for several seconds and then continuing to walk out of view. The second surveillance video captured the moments after the impact and showed the flatbed truck coming to an immediate stop as the plaintiff tumbled to the ground out of view. The plaintiff consistently maintained that he was struck from behind while walking along the shoulder of the road to an available crosswalk. The plaintiff presented expert testimony opining that the video was pixelated and too compressed to accurately reflect the circumstances of the accident.

After a four-day trial on liability and a 45-minute deliberation, the jury returned a verdict finding that the defendants were not negligent. The plaintiff’s demand prior to and during trial was $13 million. The plaintiff rejected an earlier proposal for settlement from the defendants, and the defendants anticipate seeking fees and costs based upon this proposal for settlement.

San Bernardino Office Receives Post-Mediation Defense Verdict for Small Business in Negligence Lawsuit Against Six-Figure Demand

San Bernardino Partner Stephanie J. Tanada recently received a defense verdict in a negligence lawsuit filed against our client, a small business. The plaintiff was a 62-year-old man who walked up to the business to place an order and saw four large dogs sitting on the front step. Frightened, the plaintiff returned to his car. He then decided to return to the property a few minutes later after he saw the dogs go inside the office. The plaintiff saw the dogs come from around the back of the shop and ran backwards, tripping over his own feet. The dogs never got within 30 feet of the plaintiff.

The plaintiff alleged the business was negligent because it had not leashed, penned, or otherwise restrained the dogs. The plaintiff further claimed that, as a result of that alleged negligence, he fell and suffered a fractured L4 vertebra. The plaintiff never went below six figures in mediation. The jury deliberated for just 20 minutes before returning a defense verdict.

New York Team Secures Defense Verdict in Negligence Matter Involving An Allegedly Defective Sidewalk

New York Partners Robert Yodowitz and Daniel Wang successfully obtained a defense verdict in the Supreme Court of the State of New York, Kings County, when the jury found that our client was not negligent in causing the plaintiff’s trip and fall accident. As such, the jury did not even reach the second question on the verdict sheet as to whether any negligence on the defendant’s part was a proximate cause of the plaintiff’s accident. This case was bifurcated and thus the jury did not hear anything about the plaintiff’s injuries, which required him to undergo a spinal fusion surgery. In this case, the plaintiff claimed that he tripped and fell over a defective portion of the sidewalk in front of the premises that our client owned, and which was operated as a school bus depot. There were no witnesses to this accident. The plaintiff testified that he crossed over from one side of the street to the other side where the alleged defective sidewalk was located, about a block before reaching the immediate area of the damaged sidewalk.

The court granted our motion in limine and precluded the plaintiff’s purported “sidewalk expert” from testifying based on the fact that he was not an engineer or a qualified expert. The plaintiff’s counsel did not call any other purported liability experts to testify, and instead only relied on the plaintiff’s testimony to establish that this accident occurred and that our client should be held liable for the sidewalk’s allegedly defective condition.

We cross-examined the plaintiff on the issue of whether this accident allegedly occurred as he claimed, as well as on the nature of the sidewalk’s allegedly defective condition. However, the trial judge precluded us from impeaching the plaintiff with his extensive criminal history, which included dealing heroin and being released from federal prison one week prior to his unwitnessed trip and fall. In addition, the trial judge refused to issue a jury charge on comparative negligence. Thus, the only questions on the verdict sheet were as to the defendants. The jury ultimately rendered a verdict in favor of our clients.

Chicago Team Brought In to Resolve Decade-Long Multi-Vehicle Double Wrongful Death Case

Chicago Partners Timothy J. Young and Michael H. Carter were recently asked to assume the defense on a pending down-state Illinois multi-vehicle double wrongful death case that occurred in 2002 and had been in litigation since 2009. The case had been set for an April 27, 2020 trial date.

The insured driver was traveling late at night eastbound on Interstate 74 near Springfield when she violently collided with the rear of a large SUV, causing the SUV to roll over multiple times and come to rest in the median between east and west bound traffic. One of the three young male adults in the SUV was thrown out of the vehicle and died instantly. The driver survived. The front seat passenger made his way out of the SUV and apparently either began searching for the passenger who was thrown from the vehicle, or was attempting to cross the opposite lanes of the interstate, when he was struck by a westbound vehicle, resulting in his immediate death.

The insured female driver had a sordid past, had not slept for 36 hours due to a domestic issue with her partner, tested positive for traces of cocaine, and was held in jail for two years due to her inability to post bond. She was unable to provide any meaningful testimony other than that the last thing she saw were “red lights.”

Police investigation suggested that the insured’s vehicle was speeding and struck the SUV that was traveling at the speed limit of 65 mph. The defense accident reconstruction expert assessed that the insured was traveling 11 miles over the speed limit, but that the SUV was traveling at a mere 28 mph. That opinion was countered by the police investigation.

Prior to our involvement, the client settled with the estate of the passenger who died from the impact with the insured’s vehicle. There was another settlement with the driver of the SUV who sustained minimal injuries. At the time that we took over the case, there was limited insurance money to resolve the second wrongful death and a myriad of arguments as to causation as well as contributory negligence.

While we only had the case less than 6 months, we were able to locate the insured (who had been “lost”) to determine for our client how she would appear at trial and to prepare her for trial testimony, finalize the expert’s opinions and present him for deposition, and begin deposing damage witnesses as to “grief and sorrow,” a newer damage element of an Illinois wrongful death case. After doing so, we were ready for mediation, which did not resolve the case. However, after two weeks of post-mediation efforts and with adding just over 10% more of our client’s money, along with getting the co-defendant who fatally struck the plaintiff to more than double what he had offered at mediation, the case resolved. The final resolution number for our client was well under the remaining amount on their two policies (primary and umbrella).

Los Angeles Team Prevails in Electrocution Wrongful Death Jury Trial

Los Angeles Partner Anthony Sonnett, along with Associate Kasia Peninska and Paralegal Sherry Young, recently prevailed in a wrongful death jury trial in Los Angeles Superior Court. The decision came after a week-long trial before Judge Michael Vicencia in Long Beach. The decedent, a 28-year-old journeyman lineman employed by Southern California Edison, was killed in January 2016 when his hand came into contact with an electrified wire as he was climbing a utility pole and he was electrocuted. The plaintiffs were the decedent's wife and two young children. At the time of his death, the decedent's wife was 27, and eight and a half months pregnant with the couple’s second child. The couple’s other child was three years old at the time and severely autistic.

The plaintiffs alleged that the decedent was killed because he believed that the work gloves that he was wearing at the time of the accident protected him from electric shock, and that he was led to believe this because the gloves had logos stating that they were “arc-rated” and an icon which implied protection from electric shock. The plaintiffs relied on admissions by the manufacturer that there was “confusion in the marketplace” as to whether arc-rated gloves provided protection from electrocution. In closing arguments, the plaintiffs asked the jury to award the family a total of $40 to $60 million.

We argued that the decedent was a highly trained electrical worker and would have known that his arc-rated leather gloves would not protect him from electric shock. We further argued that the decedent was still in the process of climbing the utility pole when his hand contacted the electrified wire and had not yet begun working on electrified equipment. Therefore, he was wearing the gloves he was required to wear by his employer when the accident occurred. The jury agreed and found our client not liable.

New York Office Obtains Defense Verdict in Multimillion-Dollar Sidewalk Trip & Fall

New York Trial Partner Joelle T. Jensen obtained a defense verdict on December 5, 2019, ending a two-week jury trial held in Manhattan’s Supreme Court, New York County. In this sidewalk trip-and-fall action, our office defended a restaurant and its landlord from a plaintiff’s claim that the sidewalk was mis-leveled. The plaintiff alleged that our client reported to the City that tree roots were uplifting the sidewalk three months before the accident, and that the sidewalk café seating “funneled” pedestrians towards the alleged sidewalk defect. The plaintiff, an Irish citizen and resident, sustained fractures of her foot and elbow as well as spinal injuries that necessitated four surgeries, leaving her in a wheelchair with extensive future medical costs.

Crucial to this victory was Ms. Jensen’s cross-examination of the plaintiff against her sworn pleading against the City of New York, as well as photographs taken only two days post-accident showing that her claim initially focused only on the adjacent tree well, not the mis-leveled sidewalk. Judge Nervo granted the following trial motions, which were prepared with the assistance of New York Appellate Practice Partner James M. Strauss and substantially contributed to the favorable trial result:

• a successful motion to bifurcate the trial;
• a motion to preclude the co-defendant’s surveyor from testifying that the defect was entirely on the insured’s property line;
• a motion to preclude the plaintiff from claiming a violation of City’s Department of Transportation regulation sec. 19-152 (which quantifies a sidewalk “defect” at half an inch but only applies to construction);
• a motion to preclude the plaintiff’s engineer’s photographs of the defect from coming into evidence (because they were taken three years post-accident); and
• a motion to preclude future damages (since Ireland has public health care).

In the face of these favorable rulings, the plaintiff ultimately did not call her engineer to testify, and relied instead on limited photographs of the area taken two days after the accident. After only 38 minutes of deliberation, the jury came back with a defense verdict, finding that the sidewalk had been maintained in a reasonably safe condition. Plaintiff’s counsel had sought in excess of $4 million to resolve the case.

Appellate Wins

Madison County Team Secures Significant Appellate Victory in Truck Stop Toilet Paper Injury Suit

Madison County Partner John F. Cooney and Associate Justin Zimmerman recently secured a significant appellate victory for their client, Pilot Travel Centers LLC (Pilot), when an Illinois appeals court nullified a jury verdict of over $560,000 that was initially entered against our client.

The plaintiff in this case worked as a waitress at a Denny’s restaurant inside a truck stop that Pilot owned. She sustained injuries when an industrial-sized roll of toilet paper fell on her head as she entered a stall inside the public restroom at the truck stop. She sued Pilot, alleging that it was liable for her injuries because it (1) failed to maintain its premises in a safe condition, (2) failed to inspect the restrooms periodically for dangerous conditions, (3) failed to provide safe pathways to and from the stalls, and (4) permitted the premises to become and remain in a hazardous condition.

At the conclusion of the trial, the jury returned a verdict in favor of the plaintiff and the circuit court judge denied our motion for judgment notwithstanding the verdict. Messrs. Cooney and Zimmerman then filed an appeal.

On appeal, the majority of an Illinois appeal panel determined that Pilot had no duty to protect the plaintiff from her injuries. The panel explained that Pilot could not reasonably have foreseen that a third party would place a roll of toilet paper on top of a restroom stall door “in some sort of prank or intentional attack upon the plaintiff.” Instead, the panel concluded that “this was an unusual, bizarre, and unexpected event that neither the plaintiff nor anyone from Pilot had ever seen or heard of before.”

The majority of the panel further reasoned that the toilet paper could not have been on top of the stall “for a significant amount of time” because travelers used the busy restroom every five or 10 minutes. It concluded that “because the plaintiff failed to establish that the toilet paper roll was on top of the door for a period of time long enough that Pilot should have or could have discovered it, we cannot find that Pilot had constructive notice of the condition.”

Accordingly, the appeals court reversed the lower court’s judgment and remanded the case to the circuit court with instructions that it enter judgment notwithstanding the verdict in favor of Pilot.

Further details of this case are available in the Law360 article “Truck Stop Wins Appeal Over ‘Bizarre’ Toilet Paper Injury” (subscription required).

Lexington, Ky. Office Secures Appellate Win in Wrongful Death Suit on Behalf of Automobile Dealer

Lexington, Kentucky Partner Craig M. Schneider recently secured an appellate victory when the Kentucky Court of Appeals affirmed an order granting summary judgment in favor of our client, an automobile dealer, in a wrongful death action.

The underlying case arose out of a 2014 automobile accident in which two young men died. Our client had sold one of the involved vehicles to one of the young men who died (the driver) about three months before the accident occurred. The estate of the young passenger who died in the vehicle was unsuccessful in its initial pursuit of wrongful death claims against the certificate title holder of the vehicle, a different “upstream” automobile dealer that sold the vehicle to our client. The Kentucky Supreme Court ultimately adjudicated the estate’s initial claims and dismissed them.

The estate then amended its claims and targeted our client, arguing that our client was the statutory owner of the vehicle for insurance purposes. The Kentucky Court of Appeals agreed with our position that the estate was barred from re-litigating the issue of the ownership of the vehicle. The appeal presented a unique scenario in which the published case law upon which we heavily relied in securing this favorable decision was based upon the same set of facts as the appeal.

New York Team Obtains Reversal of Indemnification Decision in Slip and Fall Matter

Partners Matthew P. Cueter and Nicholas P. Hurzeler successfully appealed a lower court decision in the New York Appellate Division, First Department. The matter involved a slip and fall on an allegedly icy sidewalk.

The co-defendant moved for summary judgment against our client, seeking contractual indemnification pursuant to a lease which required our client to clear the sidewalk of snow and ice. The lower court granted the co-defendant contractual indemnification and dismissed our cross claims against it.

On appeal, the Appellate Division reversed the decision and reinstated our cross claims. It agreed with our argument that the co-defendant never made a prima facie case and that water dripping from an awning that the co-defendant was required to maintain could have re-frozen on the sidewalk and caused the alleged condition.

Tampa Team Secures Affirmance of Summary Judgment Dismissal in Catastrophic Injury Case Involving Water Tubing Accident

Tampa Managing Partner John A. Rine and Tampa Associate Elizabeth Kirkhart recently had their 2018 summary judgment for a property management client in a general liability case upheld by Florida’s 2nd District Court of Appeal. The underlying case had a potential value in excess of $30 million.

Our client was accused of negligence by the plaintiff, a teenager who suffered serious injuries, including catastrophic brain injuries, in a water tubing accident after their inner tube collided with a dock. The plaintiff alleged that our client and the Home Owners Association (HOA) that had hired our client were negligent in failing to create and enforce rules for usage of the lake, and for allowing an allegedly illegal dock to be built and continue to exist. The plaintiff relied on experts who asserted that the dock was illegal, violated permitting requirements, and was a hazard to navigation.

Prior to and during litigation, numerous other parties involved in the accident, including a special district, and another property management company and HOA, settled for a combined amount in excess of $5.5 million.

Ultimately, we were successful in arguing that our client did not control the area, despite the access rights allegedly granted in the neighborhood covenants, and that the dock was open and obvious, which was admitted by witnesses. The court further agreed that any easement created by the covenants and restrictions or other documents of the HOA did not create access and control sufficient to impose liability. On appeal, the court affirmed the lower court’s dismissal.

California Appellate Team Reverses $2.65 Million Judgment in Cheerleading Stunt Case

San Diego Appellate Practice Partners Jeffry A. Miller, Brittany B. Sutton, and Lann G. McIntyre, along with Los Angeles Partners Craig L. Dunkin and Judith J. Steffy, recently secured a significant victory for their client, a production company, when a California appellate court reversed a judgment following jury verdict of $2.65 million initially entered against the company because the jury was not provided with an essential instruction.

The plaintiff in this matter, a former college cheerleader, broke her elbow when she was rehearsing a “half-elevator” cheerleading stunt for a film about the exploitation of women in cheerleading. Our client, Connect the Dots, Inc., produced the film.

Following the accident, the plaintiff underwent surgeries to repair her injury, and subsequently sued our client for negligence. At the conclusion of a trial, the jury awarded her approximately $2.65 million for economic losses and pain and suffering. We appealed.

On appeal, the court determined that the jury should have been instructed on “the primary assumption of risk doctrine,” which provides that no duty of care is owed for the risks inherent in a sport or activity, and which bars any recovery by a plaintiff. According to the court, the jury needed to receive an instruction on this doctrine so that they could determine whether the plaintiff’s injury resulted from the inherent dangers of cheerleading. Because the lower court failed to provide this essential instruction, the appeals court vacated the jury verdict and ordered a new trial.

Further details of this case are available in the Law360 article titled “Injured Cheerleader’s $2.6M Trial Win Scrapped On Appeal” (subscription required).

Phoenix Team Secures Affirmance of Defense Verdict in Nine-Figure Wrongful Death Claim Brought Against City of Phoenix Police Officer

The Arizona Court of Appeals recently affirmed a defense verdict in a wrongful death case tried by Phoenix Partners Sean P. Healy and Adam S. Polson. At trial, the plaintiffs’ counsel demanded $153 million in damages for the parents of a deceased pedestrian who was struck by a City of Phoenix police officer. The plaintiffs alleged that the police officer’s speed at the time of the accident and his use of a standard-issue mounted laptop while retrieving information on a call was negligent and a cause of the pedestrian’s death.

We denied that the officer was negligent and asserted that the pedestrian was intending to commit suicide by automobile, as evidenced by his presence in the middle of the road with what appeared to be a suicide note in his pocket. A defense expert testified that the accident was unavoidable due to the lack of visibility of the pedestrian, who was wearing dark clothing, and the reaction time required by the officer to avoid impact. Both the plaintiffs and the defendants utilized accident reconstructionists to support their positions. In closing, we argued that the facts supported a defense verdict, but that if the jury was inclined to award damages, $500,000 was fair and equitable.

The jury ultimately returned a defense verdict for our clients. The plaintiff appealed the decision, arguing an evidentiary issue related to the admissibility of a piece of evidence, as well as that the overall evidence did not support the verdict. However, the Arizona Court of Appeals affirmed the verdict.

New York Appellate Team Secures Affirmance of Defense Verdict in Scooter-Truck Accident in Kings County

New York Appellate Partner Nicholas P. Hurzeler and Associate Kristen Carroll recently won an appeal in a matter involving claims arising from a scooter-truck accident when the New York Appellate Division, Second Department affirmed the Kings County  Supreme Court’s  jury verdict in favor of our clients. It also affirmed the trial court’s denial of the plaintiff’s motion for judgment as a matter of law on liability, or alternatively, to set aside the verdict as contrary to the weight of the evidence.

In the underlying case, the plaintiff was traversing a crosswalk using a mobility scooter when the steering column of his scooter became stuck under the storage compartment of the defendants’ 24-foot long oil truck. The scooter was dragged 20 or 25 feet before the plaintiff was able to roll it off of the truck.

The Second Department agreed with the Supreme Court’s denial of the plaintiff’s motion for judgment as a matter of law. The evidence at trial had demonstrated that the defendants’ truck entered the intersection with a green light after the driver checked for pedestrians, and had nearly completed exiting the intersection when the plaintiff drove his scooter off of the curb and into the rear portion of the truck. The court held that under those circumstances, the driver had no ability to avoid contact with the plaintiff.

Ms. Carroll wrote the appellate brief and Mr. Hurzeler handled the oral argument.