Our client, a 50 year old Indian American woman, slipped and fell on wet paint outside the Ulta Store at the Gateway shopping center near 183/360. Gateway denied liability, pointing to a cone with a “wet paint” sign attached to it in front of the painted area. Our client testified the cone was off to the side when she approached so that she didn’t see it, as she was looking forward and toward the store doors and with a truck blocking her view to the right. As a result of the fall, she had a broken nose (required a nose reduction), a laceration on her forehead that required 8 stitches (and which has left a permanent, though now less noticeable, scar), a temporary injury to her larynx which made her lose her voice for 2 days and was painful for several more, etc. EMS called. No Dx of TBI or concussion, though she definitely exhibited symptoms for several months.
We put on 5 witnesses – Gateway’s corporate rep, our warnings expert Dr. Gary Nelson, our client’s dance instructor, and then our client and her husband. Gateway steadfastly held that it was our client’s fault, although the evidence showed their guy painted the step around the time the stores opened and not before (although he had punched in at 7 a.m. that day). They literally argued “wet paint is wet.” We argued a single cone in the wrong place was not adequate — and there was no excuse why Gateway could not have put out additional cones or used caution tape.
Defendant also pointed to their security officer’s report, which contained 3 photos of where the cone was placed after the fall. Unfortunately for us, all the photos were bad for us in that the cone was where it should have been, so we had to rely on our client’s testimony that it was not in that spot when she fell. The good news was that Gateway had to admit they had no pre-fall pictures, and the evidence showed 2 of the 3 photos were taken by our client’s husband and not their guy (even though the report claimed all 3 were taken by their guy). The third photo, which was taken by their guy, did not have a time stamp and we argued it was a CYA photo taken after the fact.
A big challenge for us was that Gateway had Facebook stalked our client, pulling up various pictures of her smiling months after the accident, as well as some pictures of her dancing at community events in late 2018. We were able to take the sting out of a lot of those by using those same pictures with her dance instructor and her husband, each of which could provide context and a reasonable explanation (distinguishing her pre-fall and post-fall level of fitness and ability, the fact that our client was smiling at her daughter’s graduation a month after the fall doesn’t mean she wasn’t injured, etc.) before Gateway could pull a “gotcha” on our client on cross. Gateway also tried to make a big deal about the fact that our client has taken several international trips with her husband and kids, but our client and her husband came across as sincere about not wanting to “put life on hold” because of an injury, especially when it comes to spending time with family.
Question to ask the insurance adjuster: Why do I have to give you a recorded statement when you can get information about the accident from the police report?
I don’t think Gateway ever made a meaningful offer, even at mediation, as they did not accept the mediator’s proposal of $20k (which the client accepted). Oops. At trial, they argued our client was at least 70% at fault, and if anything, her damages should be valued at $2.5k for past pain, $1k for future pain, and $1k for her past scar (zero for everything else). The jury disagreed:
Past pain = $75,000
Future pain = $5,000
Past impairment = $10,000
Past mental anguish = $100,000
Future mental anguish = $10,000
TOTAL = $200,000 (plus costs and pre-judgment interest from Oct 2016).