The defense contended that the mats were appropriate and there was no water on the floor. The defense contended that the fall resulted from an imbalance due to the plaintiff’s below-the-knee prosthesis from a leg amputation ten weeks before the fall.
Gross was 70 years old and was a patron at Perkin’s Restaurant on December 8, 2002. Gross testified that as she was leaving the restaurant, she slipped and fell in the entrance foyer where the defendant had laid black rubber mats. The plaintiff testified that when she stepped on the mat, it slid, throwing her forward onto her outstretched arms. She testified the floor was wet and her clothes were wet as a result of landing on the floor after the fall.
The plaintiff actually brought in a liability expert who testified that the mats were latticed with holes and are only intended to be used in the kitchen or behind the bar. He testified they are known as "anti- fatigue" mats and are not designed to absorb water and dirt.
The defendant's manager testified that he was aware that the tile floor became slippery when wet and routinely placed cardboard under the black rubber mats to absorb the water.
Tthe plaintiff's face struck the floor, cutting her lip and caused her to break both arms. The plaintiff's physician testified that the plaintiff suffered comminuted fractures of both arms. She was immobilized and hospitalized for approximately five days before being transferred to a rehabilitation facility for an additional two and a half weeks.
Despite successful healing, the plaintiff developed avascular necrosis in the head of each humerus, resulting in permanent restrictions in the range of motion of both shoulders. MRI also revealed torn rotator cuffs on both sides, which the plaintiff's physician related to the fall. The plaintiff's doctor opined that the plaintiff is a candidate for total bilateral shoulder replacement surgery in the future.
The defendant produced an incident report which stated that the plaintiff tripped over her own feet. The report did not make any reference to water on the floor. The defendant's former assistant manager and hostess testified they wrote the incident report at the time of the fall and the report lacked details because the plaintiff would not talk to them. The defendant's manager and hostess testified that the plaintiff was walking too fast and must have tripped due to her imbalance with the prosthesis. This is amazingly similar to my current case as the defendant store manager in my current case filled out the post fall incident report without ever showing what she wrote down to my client. My client then saw the report a week later when the store asked her to come in for a second report and saw that the manager had incorrectly written down how the fall occurred.
On cross-examination, plaintiff's counsel argued that this testimony was radically inconsistent with the deposition testimony of these two witnesses. During deposition, the witnesses testified they did not write down any details of the plaintiff's fall, question the plaintiff nor write an incident report. This is also similar to my current case as the store manager in our case was shown to be horribly inconsistent as to key portions of her testimony throughout litigation.
The defendant's corporate designee testified he was not aware of the type of mats used on the floor of the restaurant. The defense maintained that weather reports showed there was no rain on the day of the accident.
At the time of the fall, the plaintiff was ten weeks post left below-the-knee leg amputation resulting from a preexisting vascular deficiency. She had been fitted with a prosthesis and walked without assistance. The defendant's civil engineer testified that the mat used was appropriate and it was physically impossible for the accident to have happened as described by the plaintiff. He opined that the plaintiff must have tripped, and that she would have fallen backwards if she had, in fact, slipped as she claimed.
After a four-day trial, the jury found the defendant 60% negligent and the plaintiff 40% comparatively negligent. The plaintiff was awarded $ 260,000 in damages which was reduced accordingly. The award included $ 250,000 to the plaintiff and $ 10,000 to her husband for his loss of consortium.
Like my current trial, this case hinged on the jury's determination regarding liability. The trial featured a battle between liability experts, an architect for the plaintiff and the defendant's civil engineer, regarding the appropriateness of the floor mat used in the defendant's restaurant. The defense stressed that the plaintiff had obtained a leg prosthesis only a short time before the incident. The defendant's expert opined it was physically impossible for the plaintiff to have slipped and fallen forward in the manner she described. The defendant's expert contended, instead, that the plaintiff lost her balance and tripped forward. Plaintiff's counsel countered that the defendant's expert had conducted no studies supporting his theory and his opinions were pure speculation. On cross-examination, the defendant's expert contended he performed a test and researched mats from various manufacturers, but never discussed this information in his report.
Plaintiff's counsel also sought to impeach the credibility of the defendant's fact witnesses by emphasizing that their deposition testimony, regarding the lack of an incident report, totally contradicted their trial testimony and that these former employees had not actually witnessed the fall. Additional evidence which may have bolstered the plaintiff's case on liability included testimony that the defendant frequently resorted to placing cardboard under the mats to absorb water prior to the date of the plaintiff's fall. Share this post :