Supermarket trip and fall. Back injury to "eggshell" plaintiff. $490K. Santa Clara County.
72-year-old musician trips over pallet in supermarket, near the front door.
- Case Name: Eddie Gale Stevens, Jr. and Georgette Gale Stevens v. SaveMart Supermarkets dba FoodMaxx
- Court and Case Number: Santa Clara Superior Court / 2015-1-CV-288676
- Date of Verdict or Judgment: Wednesday, March 28, 2018
- Date Action was Filed: Thursday, December 03, 2015
- Type of Action: Trip and Fall
- Judge or Arbitrator(s): Hon. Drew Takaichi
- Plaintiffs: Eddie Gale Stevens, Jr., 72.Georgette Gale Stevens
- Defendants: SaveMart Supermarkets dba FoodMaxx
- Type of Result: Jury Verdict
- Gross Verdict or Award: $490,000
- Net Verdict or Award: $441,000
- Contributory/Comparative Negligence: 90% on SaveMart, 10% on Eddie Gale Stevens.
- Economic Damages:
- Non-Economic Damages:
Past non economic damages to Eddie Gale Stevens, Jr.: $110,000
Future non economic damages to Eddie Gale Stevens, Jr.: $300,000
Loss of consortium damages to Georgette Gale Stevens: $80,000
- Trial or Arbitration Time: 4 days.
- Jury Deliberation Time: 3 hours.
- Jury Polls: 12-0 liability to SaveMart, 10-2 damages, 11-1 liability to Eddie Gale Stevens, 10-2 comparative fault assignment.
- Post Trial Motions & Post-Verdict Settlements: Defendant SaveMart has indicated their intent to file a motion for new trial based upon excessive damages.
- Attorney for the Plaintiff:
Schaar & Silva, LLP by Dan C. Schaar and Eva D. Silva, Campbell.
Caputo & Van Der Walde, LLP by Paul F. Caputo, Campbell.
- Attorney for the Defendant:
Ropers Majeski Kohn & Bentley by James C. Hyde, San Jose.
- Plaintiff’s Medical Expert(s):
Brian Lee, M.D., neurology. (Treating physician.)
Jane Lee, M.D. (Primary Care Physician.)
- Defendant's Medical Expert(s):
Peter Cassini, M.D., neurology, Palo Alto.
- Plaintiff's Technical Expert(s):
Brad Avrit, safety engineering.
Facts and Background
- Facts and Background:
On June 5, 2014, plaintiff Eddie Gale Stevens, Jr., 72, tripped and fell over a pallet directly inside the front entrance of the FoodMaxx grocery store on Parkmoor Ave. in San Jose. The incident was captured on video. Mr. Stevens was able to get up under his own power and continue shopping. He did not report injury at the scene. The next morning he woke and was suffering from whole body jerking, pain in his upper back, shoulders and legs. His wife took him to Kaiser Hospital in San Jose.
- Plaintiff's Contentions:
Plaintiff contended that the pallet constituted a dangerous tripping hazard, especially since it was placed directly next to the front entrance of the grocery store. Plaintiff's safety expert, Brad Avrit testified that in a big box grocery store, where items are placed on pallets, the industry standard requires that these displays be at least 3 feet high, and must be monitored to ensure the pallets remain adequately stocked with product. This is especially true for pallets directly next to the front entrance. He testified that the conduct of the defendant grocery store fell below the standard of care.
In addition, during discovery a former Foodmaxx employee testified that he was trained that a pallet left on the floor was a tripping hazard and if he had seen the pallet in the condition it was at the time of the fall, he would have removed it, because it was dangerous. A current employee testified in her deposition that her practice was to follow the mantra “Don’t pass it up, pick it up.” This meant they should always be on the lookout for problems. However, she was seen on the surveillance video walking past the dangerous condition 18 minutes before the fall, and didn’t do anything to remedy the problem.
When the person-most-knowledgeable for safety at the store, who also happened to be the store manager, was deposed and asked about whether he thought of customer safety when he was designing displays of products on pallets, his testimony was “No. I don’t think of safety, I think of sales.”
- Defendant's Contentions:
The defendant contended that the pallet was not dangerous, and even if it was, it was open and obvious. The defense pointed to the fact that for 55 minutes before the fall, when the pallet was in the alleged dangerous condition, a number of customers walked past the pallet with no problems. Defendant also contested injuries; contending that the fall, at most, only resulted in minor soft tissue damage, which would have resolved completely in six weeks.
Injuries and Other Damages
- Physical Injuries claimed by Plaintiff:
As a result of the fall, plaintiff suffered from whole body jerks, which would come on without warning. At the time of the subject incident, plaintiff was 72 years old, and had significant asymptomatic cervical central canal stenosis (eggshell plaintiff). As a result of this fall, his primary care physician, and his treating neurologist concluded that his condition was aggravated, which resulted in cervical myelopathy. The myelopathy in his cervical spine was causing hyperreflexia in his upper extremities.
As a result of the hyperreflexia and whole body jerks, plaintiff was unable to play his trumpet at the same level he could before the fall. Eddie Gale Stevens, Jr. is a world-renowned jazz trumpeter, and in 1974 he was honored as San Jose’s “Ambassador of Jazz,” by then-San Jose Mayor, Norman Mineta. He has played with the likes of Cecil Taylor, John Coltrane and the great Master Sun Ra. He has recorded a number of albums, and is in the Smithsonian Collection of Classic Jazz. At the time of the fall he was in the process of remaking his 1968 album, “Ghetto Music." As a result of the fall and his injuries, he could only play his trumpet for a few minutes at a time without pain, compared to the hours he could play before the incident. The remake of his album was put on hold, and his community service involvement dramatically decreased in the years after the fall. By the time of trial, plaintiff estimated his playing ability was 35% of what it was before the fall. As a result of the fall, plaintiff Georgette Gale Stevens suffered a loss of consortium.
- Special Damages Claimed - Past Medical: Waived.
- Special Damages Claimed - Future Medical: Waived.
- Special Damages Claimed - Past Lost Earnings: Waived.
- Special Damages Claimed - Future Lost Earnings: Waived.
Demands and Offers
- Plaintiff Final Demand before Trial: $300,000
- Defendant §998 Offer: $15,000; then $55,000 approximately 10 days before trial.