Store employee taking trash to the trash room slips on floor, falls backwards on her wrists.
The jury found that Glendale I Mall Associates, LLP was 70% negligent and ERMC Property Management of Illinois, LLC was 30% negligent and that thier negligence was a substantial factor in causing plaintiff harm.
Past medical expenses:$78,173
Future medical expenses: $1,529,480
Past loss of income: $138,117
Future loss of income: $300,000
Past pain and suffering: $437,000
Future pain and suffering: $713,000
AlderLaw, P.C. by Lourdes DeArmas and Ashley A. Laiken, Los Angeles.
Kinkle, Rodiger & Spriggs by Michael Moon, Riverside.
David Fish, M.D./MPH, pain management and life care planning.
Edwin M. Ashley, M.D., orthopedic surgery.
Robert M. Wilson, M.D., general orthopedic.
Mark Burns, accident reconstruction.
David T. Fractor, Ph.D., economics.
Paul Broadus, M.A., vocational rehabilitation.
Alex Balian, retail industry policies and procedures.
Plaintiff was working at Brighton Collectibles, one of the stores at the Glendale Galleria. The Glendale Galleria is owned and managed by defendant, Glendale I Mall Associates, LLP. At the time of this incident, co-defendant, ERMC Property Management of Illinois, LLC, was the entity contracted to maintain and clean the mall.
The Glendale Galleria is divided in two: Galleria I and Galleria II. Around 2:45 p.m. on November 7, 2014, plaintiff and a co-worker were discarding trash and recyclables in the trash room designated to them, called “Trash Room Y” in Galleria I. As she was exiting Trash Room Y, plaintiff slipped and fell back on both hands.
The co-worker testified that there was an oily substance on the floor at the time of the incident. Both plaintiff and her co-worker noticed that her clothes were wet with grease and dirt. Within Trash Room Y, there was also a cooking oil recycling bin used by the food court workers to dispose of used cooking oil. Less than a month prior to the date of incident, on October 14, 2014, an email was sent to the mall defendant advising them that there was oil on the floor. They were also advised that the cooking oil recycling bin was not leaking but that the food court employees were not properly disposing of the oil, “making a mess everywhere.”
Defendants did not have reasonable inspections of the property to discover unsafe conditions. Plaintiff’s expert, Mark Burns, conducted two site inspections, an informal and a formal. Mr. Burns testified that Trash Room Y was in an unsafe condition at the time of the incident and the results of the testing was slip resistance of 0.15 - 0.20. He concluded that there was an oily substance at the time of the incident and that it would be difficult to perceive and could go easily go unnoticed. Therefore, the floor of the trash room presented an unreasonable risk of harm.
In addition, Mr. Burns testified that defendants failed to have proper floor inspection procedures to proactively identify hazards and that defendants had actual notice that grease/oil was not being properly disposed of at the premises. Plaintiff was able to show that on the day of the incident, no inspections had occurred.
The housekeeping manager testified that the last time before the incident that she had been to Trash Room Y was 24 hours before. She did not go to Trash Room Y until after the incident. In addition, the manager for the security guard testified that he went to Trash Room Y after the incident. He was on the other side of the mall called, Galleria II. It took him 7 minutes to get to Trash Room Y from his location. When he got the call, he responded immediately. He was not responsible for patrolling Galleria I.
There was another security guard on duty the day of the incident for Galleria I. While on patrol, that security guard was supposed to make their presence known, look for potential loss prevention issues, look for hazards, and protect the customers. The security guard was supposed to make his/her rounds on the entire bottom floor of the mall, the second floor of the mall, the food court, restrooms, and three separate trash rooms. Based on that testimony, plaintiff was able to show that if it took the manager 7 minutes to cross the entire mall, there was no way that the security guard on patrol could complete his entire round of top and bottom floors of the mall, the food court, restrooms, and inspect Trash Room Y specifically every 15 minutes.
Defendants’ liability expert, Alex Balian, contradicted his own opinion which led to the Supreme Court decision in the landmark case of Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1206 and his own articles on the subject of premises. He testified that the Ortega case no longer applies for premises liability because maintenance procedures and retail operations have changed. He also intimated that his articles were really only about supermarkets and were taken out of context. Mr. Balian did not conduct a site inspection. He did not testify about whether or not the premises was a dangerous condition nor about whether plaintiff was, herself, negligent. As a result, plaintiff was able to show that defendants did not have reasonable inspections of the property to discover unsafe conditions. Since there was no evidence that an inspection was made within a reasonable time before the incident, that proved that the condition existed long enough so that defendants using reasonable care would have discovered it.
That defendants had no notice of the dangerous condition and that their inspections were adequate. Defendants’ liability expert, Alex Balian, testified that defendants had proper floor inspection procedures wherein security patrol officers inspected Trash Room Y every 15 minutes and the housekeeping manager, Rafaela Hernandez, inspected Trash Room Y every hour. Mr. Balian testified that documentation of inspections was not required.
Immediately after the incident, plaintiff felt pain on both of her wrists. Plaintiff was transported to Glendale Memorial Medical Center by ambulance. By the time she got to the ER, her left hand/wrist was very swollen. At the ER, plaintiff complained of left wrist and right thumb pain. X-rays were read as normal and she was discharged with a left hand brace. Three days later plaintiff proceeded to urgent care with continued complaints of pain in both hands – worse on the left. X-rays were again performed, which showed a questionable fracture at the base of the fifth metacarpal. Worker’s Compensation referred plaintiff to orthopedic hand specialist, Levi Harrison, M.D.
Upon review of the records and examination, Dr. Harrison ultimately found that she suffered a scapholunate ligament tear, TFCC tears, as well as a nondisplaced intraarticular distal radial fracture. Surgery was recommended for the scapholunate ligament tear. Nevertheless, plaintiff never underwent the surgery. In his reports, Dr. Harrison noted that all of her complaints and injuries were due to the incident and placed plaintiff on work restriction. On or about March 2015, and in Dr. Harrison’s absence, plaintiff was examined by Steven Lin, MD, another orthopedic hand specialist due to her ongoing and persistent pain in her hands and wrists. Dr. Lin noted that there was possibly a “re-injury sometime in January to her right hand.” However, Dr. Lin indicated in his report that he felt that plaintiff was developing a “bit of hypersensitivity syndrome of early CRPS.” Since plaintiff only saw Dr. Lin once and plaintiff’s care was transferred from Dr. Harrison to another orthopedic hand specialist, Kenneth Sabbag, MD., the early CRPS was not further explored.
Dr. Sabbag examined plaintiff and recommended conservative treatment, including physical therapy. By the time plaintiff was seen by Dr. Sabbag, the symptoms to the right were now worse than the left. In his reports, Dr. Sabbag noted that all of her complaints and injuries were due to the incident. By August 2016, plaintiff’s care was transferred to a general orthopedic surgeon, Edward Stokes, M.D. He examined plaintiff and recommended continuing conservative treatment. In his reports, he noted that in his medical opinion that the injury arose out of and occurred during the course of plaintiff's normal employment and that her continuing problems could be attributed entirely, wholly and solely, to the injury on November 7, 2014.
Dr. Stokes also placed plaintiff on total temporary disability. Despite ongoing treatment, plaintiff’s pain worsened. All of plaintiff’s doctors, including the orthopedic hand specialists and her primary care physician, were all searching for etiology of the continued pain. Due to a positive ANA blood test, autoimmune diseases were explored – Raynaud Syndrome, Lupus, and Rheumatoid Arthritis. In addition, Diabetic Neuropathy was also considered. No conclusive diagnosis was made. Due to the worsening of her condition and persistent pain, plaintiff sought a second opinion outside of Worker’s Compensation. Plaintiff went to Edwin Ashley, MD, an orthopedic surgeon with a subspecialty in hands. Dr. Ashley ultimately determined that she did have CRPS and continued bilateral carpel tunnel syndrome. Dr. Ashley was unable to proceed with the surgery for the carpal tunnel until the CRPS was resolved. Dr. Ashley referred plaintiff to a pain management specialist Steven Richeimer, MD. He is also an expert on CRPS. Dr. Richeimer performed tests and ultimately concluded that plaintiff did, in fact, suffer from early CRPS. Dr. Richeimer developed a treatment plan that included ganglion blocks and ketamine infusions. However, he began plaintiff on a more conservative treatment of ketamine cream and prescription medication.