Sunday, May 22, 2011

Judge Awards for Fall in Casino Bathroom

Continuing with my review of Pennsylvania slip and fall lawsuits is the case of Dunaway v. Bally’s Atlantic City. This case was tried in Philadelphia because the plaintiff’s attorney argued that Dunaway, the plaintiff, was from Philadelphia and a significant portion of Bally’s revenue came from Philadelphia.

Dunaway, a 68-year-old retired nurse, was visiting the defendant's Atlantic City casino when she she slipped and fell due to slippery mop water on the floor of a bathroom. Bally’s argued that there was a warning sign posted on the wall of the restroom and that the plaintiff, failing to heed that warning, was comparatively negligent.

Dunaway, the only live witness (everyone else was presented by deposition transcript or video), testified that when she first walked into the bathroom she saw an attendant with a mop in one of the stalls. When Dunaway walked back out of her stall she stepped in mop water that caused her to do a split forcing her right knee to hit the floor.

Dunaway’s treating orthopedic surgeon testified that the plaintiff sustained traumatic chondromalacia (abnormal softening of the cartilage under the knee cap) of her right knee as a result of the fall. As a result, Dunaway underwent six weeks of physical therapy, injections and was prescribed pain medication. She walked with a cane at trial and her doctor testified that the plaintiff may require a right knee replacement within the next five to ten years. The plaintiff asserted a medical lien of approximately $ 36,000.

The defense argued that the plaintiff should have been aware of the slipper conditions given the attendant with the mop, her admission that the floor looked slippery as well as the sign posted on the wall which indicated "CAUTION, FLOOR MAY BE SLIPPERY." It is unclear whether this was a permanent sign or head been hung for the occasion by the attendant. This is actually a big point in my opinion as it can have OSHA implications that, as I have written before in this POST, can establish the standard of care. The defendant's attendant testified that she was using only water with no detergent in the bucket to clean the restroom floors at the time of the plaintiff's fall.

The defendant's orthopedic surgeon opined that the plaintiff sustained a bruise on her knee as a result of the fall, but that her continuing knee complaints were not related to the fall but instead were preexisting conditions.

The case was tried as a bench trial with an award of $51,500 to the plaintiff. Delay damages increased the award to approximately $53,200. The case was appealed by the plaintiff from a $ 21,000 arbitration award.

It is curious that this case was tried without a jury. As such, the result may be a little misleading. Why? Because a judge, unlike a jury who is kept in the dark, is perfectly aware that the casino was covered by a policy of liability insurance in place to pay for injuries like what the plaintiff suffered. Sadly, in most cases, the jury is never notified that the defendant has a liability policy that they have paid for over time to provide coverage for the injured persons damages. Because the judge knew there was a liability policy the chances were greater that he would compensate Dunaway for her injuries. If this had been tried to a jury….we may have seen a very different result. Share this post :
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4 comments:

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    Unfortunately she is not so lucky like Cynthia J. Brennan but her compensation isn't bad

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