Soft tissue injuries in slip and fall. $215K. Sacramento County.

Summary

Customer slips and falls in Save Mart Supermarket. Water leaking from air conditioner is blamed.

The Case

  • Case Name: Susan Oby, Robert Oby v. Save Mart Supermarkets
  • Court and Case Number: Sacramento Superior Court / 34-2015-00176138
  • Date of Verdict or Judgment: Wednesday, April 12, 2017
  • Date Action was Filed: Friday, March 06, 2015
  • Type of Action: Premises Liability, Slip and Fall
  • Judge or Arbitrator(s): Hon. Christopher E. Krueger
  • Plaintiffs:
    Susan Oby, 58
    Robert Oby
  • Defendants:
    Save Mart Supermarkets
  • Type of Result: Jury Verdict

The Result

  • Gross Verdict or Award: $215,682
  • Net Verdict or Award: $215,682
  • Contributory/Comparative Negligence: None.
  • Economic Damages:

    $115,682 in past medical expenses incurred by Susan Oby, all of which were on liens and unpaid.

  • Non-Economic Damages:

    $100,000 as to Susan Oby. Robert Oby's only claim was for loss of consortium, which the jury rejected.

  • Punitive Damages:

    None.

  • Trial or Arbitration Time: 7 days.
  • Jury Deliberation Time: 1 day.
  • Post Trial Motions & Post-Verdict Settlements: Defendant filed a motion to tax Susan Oby's costs. Plaintiffs filed a motion to tax defendant's costs to defend Robert Oby's loss of consortium claim.

The Attorneys

  • Attorney for the Plaintiff:

    Todd S Bissell, A Prof Law Corp by Todd S. Bissell, Folsom.

  • Attorney for the Defendant:

    Arata Swingle Van Egmond & Goodwin by Bradley J. Swingle, Modesto.

The Experts

  • Plaintiff’s Medical Expert(s):

    Daniel Cooper, D.O., osteopathy, Folsom

    Daniel Dunlevy, M.D., physical medicine, Citrus Heights.

    Steve Parkinson, M.D., pain management, Sacramento.

  • Defendant's Medical Expert(s):

    VanBuren Lemons, M.D., neurosurgery, Sacramento.

  • Plaintiff's Technical Expert(s):

    Carol Hyland, billing and life care planning, Lafayette.

    John Hancock, Ph.D., economics, Gold River.

  • Defendant's Technical Expert(s):

    Casey Word, actuary, Walnut Creek.

Facts and Background

  • Facts and Background:

    On August 22, 2014, Susan Oby, age 58, slipped and fell in water leaking from an overhead air conditioner in the Folsom Save Mart. At that time she was not employed outside of the home, but was looking for work in the fast-food industry. She was also the in-home caretaker for her husband, Robert, who suffered from Parkinson's disease, for which she did get paid by In Home Support Services.

  • Plaintiff's Contentions:

    Susan Oby claimed that Save Mart knew that their air conditioner was faulty and were responsible for her injuries and medical damages, all of which were on liens as she was uninsured.

  • Defendant's Contentions:

    Save Mart initially denied liability and cross-complained against their air conditioning vendor, claiming that they failed to repair the leaky unit. However, once the vendor established that they made repair recommendations to Save Mart that were never authorized or scheduled before Susan Oby slipped, Save Mart dismissed their cross complaint and admitted liability.

    Save Mart further contended that Susan Oby's treatment was excessive and that the medical charges were unreasonable and should have totaled approximately $50,000 based on the expert testimony of actuary Casey Word. Dr. Lemons testified that Susan suffered only a soft-tissue injury. Defendant further contended that Susan's work hours caring for her husband actually went up after the accident and that she did not suffer any wage loss.

    Save Mart claimed that Susan Oby’s claim for lifetime medical expenses of approximately $1,200,000 was unreasonable and not supported by the evidence.

Injuries and Other Damages

  • Physical Injuries claimed by Plaintiff:

    Susan Oby claimed soft-tissue injuries to her neck and back as well as chronic disc and facet injuries, resulting in three epidural injections and two radio frequency ablations. These procedures did not totally resolve Susan's pain and she was left with residual symptoms for which she did not receive any treatment for about 9 months prior to trial.

  • Susan claimed that she was delayed in returning to work for one year because of her injuries. One year post accident, she became employed at McDonald's part time, earning $9 per hour. Dr. Dunlevy testified that Susan should not work because of her residual complaints and that she should not continue assisting her husband as his in-home care taker. He also opined that she would likely require surgery in the future to address her disc injury. Susan had not consulted with a surgeon nor had any treatment in the 9 months before trial. Carol Hyland testified that Susan's medical charges were within the usual and customary range for the Folsom/Sacramento area and she also prepared a life care plan. John Hancock, Ph.D. reduced the damages to present value.

Special Damages

  • Special Damages Claimed - Past Medical: $115,682
  • Special Damages Claimed - Future Medical: $1,200,000 if Susan had all treatment suggested by Dr. Dunlevy.
  • Special Damages Claimed - Past Lost Earnings: $9,360
  • Special Damages Claimed - Future Lost Earnings: $82,000 if Susan stopped working.

Demands and Offers

  • Plaintiff §998 Demand: $200,000 about two weeks prior to trial.
  • Defendant Final Offer before Trial: $85,000 and a waiver of costs to Robert.

Additional Notes

Jury awarded Susan 100% of her liened medical specials ($115,682) and gave her $100,000 in general damages.

In addition to Dr. Dunlevy and Carol Hyland's testifying as to the reasonableness of these bills, plaintiff had the owners of the chiropractic clinic, physical therapy clinic, imaging facility, and surgery center where she had her injections all testify to their billing practices and that plaintiff would still be responsible for all charges even if the jury refused to award those to her. They did not award any pre-trial wages as Susan could not prove that she was looking for a job just before the accident, and she was still working inside the home at that time as Robert's care provider.

Since Susan had not treated in the 9 months prior to trial, the jury did not award her future losses. Susan filed a cost bill for her in the amount of $55,683, which included experts and pre-trial interest per CCP Section 998.

Defendant filed a cost bill on Robert's loss of consortium claim in the amount of $53,304 with a declaration that they were seeking 25% of all of their costs from him. Motions to tax were filed by both sides. On 7-5-17, the court awarded plaintiffs 100% of their $55,683 in costs, and struck 100% of defendant's costs, finding all of Susan's costs reasonable. With post trial interest, defendant owed Susan $281,000 which has been paid in full.

Per defense counsel:

Counsel asked the jury award Susan Oby in excess of $2,000,000 at trial. The jury rejected Susan Oby’s claim of $1,200,000 in future medical expenses and awarded her nothing on this claim.

Disclaimer

This is not an official court document. While the publisher believes the information to be accurate, the publisher does not guarantee it and the reader is advised not to rely upon it without consulting the official court documents or the attorneys of record in this matter who are listed above.

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