Garage door falls on tenant but landlord says injury was from auto accident. $2.8M. Sacramento County.
Two accidents, a rear-ender and premises liability, occur ten days apart; causation disputed as well as liability for the premises accident.
- Case Name: Record v. Reese, et al.
- Court and Case Number: Sacramento Superior Court / 34-2013-00147667
- Date of Verdict or Judgment: Wednesday, December 20, 2017
- Date Action was Filed: Thursday, August 31, 2017
- Type of Case: Dangerous Condition Private Property, Negligence, Vehicles - Auto vs. Auto
- Judge or Arbitrator(s): Hon. Russell L. Hom
Plaintiffs: Brian Record, 47, unemployed, retraining at the time of the incidents as a result of prior injuries.Leslie Record, 45
Defendants: Patrick Reese (driver of vehicle involved in the car crash)Lisa Ann & Dario Trujillo (owners of the rental property plaintiff was renting)
- Type of Result: Jury Verdict
- Gross Verdict or Award: $2,860,914
- Net Verdict or Award: Approximately $3,000,000
Award as to each Defendant:
Trujillos (landlords): 93%
Reese (defendant driver): 2%
No award as to loss of consortium claim.
- Contributory/Comparative Negligence: 5% as to plaintiff. Defendants' apportionments above.
Past medical expenses: $211,249
Future medical expense: $373, 259
Past lost earnings: $79,635
Future lost earnings: $146,771
- Jury Deliberation Time: 12 days.
- Jury Polls: 2 days.
- Post Trial Motions & Post-Verdict Settlements: 12-0.
Attorney for the Plaintiff:
Demas Law Group, PC by John N. Demas, Sacramento.
Attorney for the Defendant:
Jacobson Markham LLP by Richard Jacobson, Sacramento. (For Patrick Reese.)
Law Offices of Harris & Yempuku by Victoria Yamamoto, Sacramento. (For the Trujillos.)
Plaintiff’s Medical Expert(s):
VanBuren Lemons, M.D., neurosurgery, Sacramento. (Treating physician.)
Defendant's Medical Expert(s):
Peter N. Sfakianos, M.D., orthopedic surgery, Folsom.
Plaintiff's Technical Expert(s):
Scott Whilten, construction, Sacramento.
Defendant's Technical Expert(s):
Facts and Background
Facts and Background:
Plaintiff Brian Record, was involved in two separate incidents 10 days apart in May 2012. The first incident involved a wooden garage door falling on Brian’s back and pinning him to a truck and the second incident involved Brian riding as a passenger in a truck that was rear-ended 10 days later.
At the time plaintiff was injured, he was 42 years old and had recently moved from Washington state to California. He was in the middle of a workers' comp retraining program that brought him to Sacramento for an accounting/business program at a tech school in Sacramento. In 2002 plaintiff had been injured at work and ultimately had to have two neck surgeries due to his injuries. Later, in 2008, he was injured again at work which disabled him from working as a finish carpenter. The second work injury ultimately led to two shoulder surgeries and two additional neck surgeries. By 2012, Brian had two levels at his neck fused (4 prior neck surgeries) and screws in his right shoulder. Due to his previous injuries and then to the injuries he suffered as a result of the garage door falling on his back, he did not work from 2008 until September 2015.
Garage door incident (#1)
The first incident in the present case with plaintiff took place at a home that he and his wife had rented in Sacramento from the defendant landlords. The incident involved a spring/hinged wood garage door that plaintiff claimed became unhinged and fell on plaintiff’s back, pinning him to a truck, when he was in his garage. That night, after the door allegedly fell on him, plaintiff went to the emergency room, complaining of severe low back pain and left leg weakness. He did not have any visible bruising at the time and his CT scans and X-rays showed no fractures. He was given four injections of pain medication, a diagnosis of “a contusion” and a prescription for additional pain medication. For the next 10 days, Brian stayed home and did not return to the doctor.
Rear-ender car collision (#2)
On the tenth day after the garage door incident, plaintiff was riding as a passenger in a pickup truck. At a stop, the truck he was riding in was the last vehicle to be rear-ended in a four-car crash. Ten days after the rear-end crash, plaintiff returned to the ER complaining of low back pain and left leg weakness.
That defendant landlords' negligence caused the garage door to fall on plaintiff, resulting in his injuries.
Defendant in the car collision accepted responsibility for his actions and entered into a “Mary Carter” agreement after tendering their remaining policy limits of $285,000.
The landlord defendants maintained that plaintiff was the cause of his own injury, or was never truly injured by the garage door in the first place.
Injuries and Other Damages
Physical Injuries claimed by Plaintiff:
Disc herniation resulting discectomy and fusion at L5-S1.
Plaintiff ultimately got an MRI that showed he had a small disc herniation at L5-S1. He tried conservative treatment (traction, physical therapy, epidural steroid injections and a discogram) which gave him little to no relief from his pain and symptoms. He sought out a second opinion from another specialist where another epidural steroid injection was administered. Like the first injection, this one gave him no relief and it was recommended he have a microdiscectomy and laminectomy.
In December, 2013, plaintiff had the recommended surgery and initially found that it provided him great relief for his leg pain and some relief of his low back pain. Unfortunately, about 6-9 months later, his symptoms returned. Because he needed to provide for his family, plaintiff went to work as a commercial roofer in September 2015 and worked for two years until his pain reached a point he could no longer tolerate.
In 2017, six weeks before trial, plaintiff underwent a one-level anterior fusion at L5-S1. At the time of trial, the surgery appeared to have been a success as plaintiff has no leg symptoms, very little low back pain and testified at trial he is doing great and is off pain meds.
Plaintiff told all of his medical providers his injuries started from the car crash and never mentioned the garage door incident to any of them. He also testified at deposition that his symptoms from the garage door incident resolved prior to the car crash.
- Special Damages Claimed - Past Medical: $211,249
- Special Damages Claimed - Future Medical: $373,259
- Special Damages Claimed - Past Lost Earnings: $79,635
- Special Damages Claimed - Future Lost Earnings: $146,771
Demands and Offers
- Plaintiff §998 Demand: $499,000 to Trujillo defendants (8/23/17)
- Plaintiff Final Demand before Trial: $349,000 to Trujillo defendants (11/21/17)
- Defendant §998 Offer: $5,000 from Trujillo defendants (2/24/15)
- Defendant Final Offer before Trial: $50,000.01 from Trujillo defendants (11/17/17)
The Trujillo defendants' credibility was challenged by plaintiff’s counsel. They changed their story at trial from their deposition testimony and claimed they did not know about the prior issues with the garage door. Plaintiff conclusively established that the defendants must have known about the prior garage door issues.
The Trujillo defendants were confident that plaintiff’s deposition testimony, in which he told his doctors that his injuries started from the car accident, would prevail. However, they failed to account for the overwhelming medical evidence that the disc likely herniated from the garage door incident because the presentation to the ER was classic for a disc herniation.
Their policy limits were $500,000 which were demanded multiple times.