Case Results
Gordon & Silber Obtains Defense Verdict for Operator of Food Marketplace Against a Woman who Tripped on Floor Defect — December 2008.
Type of Case: Fall on floor. Alleged negligent maintenance of marketplace floor.
Venue: New York Supreme Court, Bronx County.
Background Facts: Plaintiff claimed she tripped and fell on a raised/cracked circular elevation on the floor of the gourmet marketplace she had entered to purchase food. She was assisted by the defendant's manager who noted on the accident report that plaintiff had stepped on the base of a crowd control device and lost her balance. In addition, defendant produced a cashier who testified that plaintiff did not fall, but merely stumbled onto the cashier counter and did not appear injured.
Special Problems: Plaintiff was an articulate female in her early 70's who was a Christian minister and who appeared an old fashioned sweet woman who had worked her entire life as a nurse in a local hospital. Her husband, a co-plaintiff, was a disabled Vietnam Veteran who was involved in veteran affairs issues on a national level. Despite it being clear from the radiological evidence that her knee problems, at least to a large extent, pre-existed the date of the accident, she had made no complaints of knee pain in her 20 year medical history. Also, the manager who took the accident report, was subsequently fired for performance related reasons and admitted to harboring a grudge against the defendant company. At his non-party deposition he went out of his way to assist the plaintiff, claiming that he had warned the defendant about floor defects and had told his supervisor it was an accident waiting to happen. At trial, we had to argue that the jury should disregard his testimony, but should nevertheless credit his accident report since he drafted it prior to becoming disgruntled.
Our Strategy: Despite plaintiff's status as a Christian minister, we aggressively attacked her credibility on cross examination, including her lying about her age to her own physicians and the fact that she claimed she was given a different accident report than the one produced by the defendant, which she claimed had been destroyed in a flood. Upon further cross examination, she admitted no such alternative report existed. Despite her claim of increasing knee pain which began as a result of the accident, we hammered away that the medical records did not reveal right knee pain until four months after the incident, and we highlighted that she had refused medical attention at the scene, took the subway home and returned to work after taking a couple of days off. The critical piece of evidence was a medical questionaire which plaintiff had filled out which stated her knee pain had begun 3 1/2 months after the incident and that she did not know what precipitated it. In response to plaintiff's expert testimony that the absence of right knee pain was consistent with a torn meniscus, which became aggravated over time, we argued this position contradicted his testimony she had sprained her knee so severely that it still showed up on an MRI film 6 months after the accident.
Result: The jury returned a defense verdict within an hour after being given the case for deliberation. Post verdict jury interviews revealed that they did not believe plaintiff was a credible witness, Christian Minister or not.
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