Trip and fall on drain in lawn at mobile home park. $311,899 awarded. San Diego County.
Self-employed plumber trips over uncovered drain in large lawn at mobile home park. Collar bone fracture and shoulder tear requiring surgery. No claim for lost earnings.
- Case Name: Don Hemphill v. Wright Family LLC dba Roadrunner Club; et al.
- Court and Case Number: San Diego Superior Court / 37-2012-00054705-CU-PO-NC
- Date of Verdict or Judgment: Tuesday, September 24, 2013
- Date Action was Filed: Monday, June 25, 2012
- Type of Case: Premises Liability
- Judge or Arbitrator(s): Hon. Robert Dahlquist
Plaintiffs: Don Hemphill, 53, self-employed plumber
Defendants: Wright Family LLC; Roadrunner Club LP
- Type of Result: Jury Verdict
- Gross Verdict or Award: $311,899.67
- Net Verdict or Award: $311,899.67
- Contributory/Comparative Negligence: None.
Full past meds of $151,899.67
Full future meds of $20,000.
No past or future loss of earnings claimed.
Past non-economic of $100,000.
Future non-economic of $40,000.
- Trial or Arbitration Time: 5 days
- Jury Deliberation Time: 5 hours
- Jury Polls: 12-0 negligence; 11-1 causation and damages
- Post Trial Motions & Post-Verdict Settlements: Plaintiff motions for attorney fees and costs of proof
Attorney for the Plaintiff: Kohn Law Office by Russell S. Kohn, Oceanside.
Attorney for the Defendant: Brady, Vorwerck, Ryder & Caspino by Timothy X. Lane, Orange.
Plaintiff’s Medical Experts: Jon Kelly, MD, orthopedics, San Diego.Thomas Schweller, MD, neurology, San Diego.
Defendant's Medical Experts: Raymond Vance, MD, orthopedics, San Diego.Michael Lobatz, MD, neurology, Encinitas.
Plaintiff's Technical Experts: Steven George, landscape contracting, San Diego.Lawrence Lievense, medical billing, Camarillo.
Defendant's Technical Experts: Glenn Asakawa, landscape architecture, San Diego.Agnes Grogan, medical billing, Long Beach.
Facts and Background
Facts and Background:
Plaintiff, a 53-year-old self-employed plumber resided in defendant's mobile home park in Borrego Springs. Plaintiff fell after he stepped into an uncovered drain hole in a huge common area lawn. The drain hole was hidden by grass that had grown over it. Several pieces of the drain fitting had been broken off.
Defendant's employees mowed the lawn directly over the drain hole on large riding mowers at least twice a week for many months before the incident. Nobody knew what happened to the drain cover, or how the drain fitting became damaged.
Plaintiff claimed that defendant negligently maintained its property and created an unreasonably dangerous condition.
Defense claimed it was not negligent because it had no notice of the uncovered drain hole before the incident. Defense also contested the nature and extent of the plaintiff's injuries.
Injuries and Other Damages
Physical Injuries claimed by Plaintiff:
Fractured right clavicle (collarbone) and right shoulder labral tear resulting in frozen shoulder and need for future arthroscopic surgery. Plaintiff also claimed a vestibular right inner ear injury causing balance problems.
- Special Damages Claimed - Past Medical: $151,899.67
- Special Damages Claimed - Future Medical: $20,000
- Special Damages Claimed - Past Lost Earnings: Plaintiff waived his claim for past loss of earnings.
- Special Damages Claimed - Future Lost Earnings: Plaintiff waived his claim for future loss of earnings.
Demands and Offers
- Plaintiff §998 Demand: None.
- Plaintiff Final Demand before Trial: $1,000,000 per plaintiff counsel. $1.2 million per defense counsel.
- Defendant §998 Offer: None.
- Defendant Final Offer before Trial: $2,500
- Defendant Offer during Trial: $150,000
Plaintiff's counsel attributes the low non-economic damage award to Judge Dahlquist's preclusion of certain testimony from the plaintiff's father and wife as to the effects of plaintiff's injuries on his life as “cumulative”.
Plaintiff attorney also notes that "Judge Dahlquist gave a palpable vibe that he did not like plaintiff's case" and that "the jury sensed it."
Defendant attributes low non-economic damages to the impeachment of plaintiff who denied that he told a pain specialist less than a month after the accident that he had not had opiates for many months and wanted opiates. The pain specialist called plaintiff’s pharmacy and found out plaintiff had been given 60 Vicodin the day before and 60 Vicodin 10 days before. The pain specialist then refused to treat plaintiff. In addition, says defense counsel, the pain and suffering damages were low because plaintiff had a long history of previous injuries including two back surgeries, neck pain and prior hearing loss.
Defense counsel further notes that Judge Dahlquist was fair and impartial and did not show any favoritism; that he did not allow a single side bar conference.
Defense counsel says that, in closing argument, plaintiff's counsel requested the jury to award plaintiff $1,236,899.