Slip and fall on wet grass of apartment complex. $2.7M gross; $695K net. Santa Cruz County.
Tenant at apartment complex walks across wet grass to get a doggy poop bag.
- Case Name: Nancy Gambino v. Cypress Point RE Investors, LLC, Braddock & Logan Services, Inc.
- Court and Case Number: Santa Cruz Superior Court / CV180979
- Date of Verdict or Judgment: Wednesday, November 30, 2016
- Date Action was Filed: Thursday, January 29, 2015
- Type of Case: Premises Liability, Slip and Fall
- Judge or Arbitrator(s): Hon. Paul Marigonda
Plaintiffs: Nancy Gambino, 55.
Defendants: Cypress Point RE Investors, LLCBraddock & Logan Services, Inc
- Type of Result: Jury Verdict
- Gross Verdict or Award: $2,781,465
- Net Verdict or Award: $695,366.25
- Contributory/Comparative Negligence: 75% to plaintiff.
- Trial or Arbitration Time: 6 days.
- Jury Deliberation Time: 3 days.
- Jury Polls: 11-1 Negligence, 10-2 Damages, 9-3 Comparative Negligence
- Post Trial Motions & Post-Verdict Settlements: Defendant agreed to pay plaintiff's costs in the amount of $23,191.60, bringing the total judgment to $718,557.85.
Attorney for the Plaintiff:
Caputo & Van Der Walde LLP by Dan C. Schaar, Richard E. Eichenbaum and Eva D. Silva, Campbell.
Attorney for the Defendant:
Law Offices of John A. Biard by Jose A. Montalvo and Jill E. Latchaw, Walnut Creek and Rancho Cordova.
Plaintiff’s Medical Expert(s):
Daniel Marcus, M.D., physical medicine/rehabilitation, Santa Cruz.
Steven Feinberg, M.D., physical medicine/rehabilitation, Palo Alto.
Defendant's Medical Expert(s):
Donald Pompan, M.D., orthopedic surgery, Salinas.
Plaintiff's Technical Expert(s):
Carol Hyland, M.A., M.S., C.L.C.P., C.D.M.S., cost of care, Lafayette.
Michael Hudson, property development, San Jose.
Peter Calendar, landscape architecture, Portola Valley.
E. Robert Miller, property management, Burlingame.
Phil Allman, economics, Oakland.
Defendant's Technical Expert(s):
Roger Fiske, landscape architecture, San Ramon.
James Cantrell, property management, San Francisco.
Facts and Background
Facts and Background:
This case arose out of a slip and fall that occurred in a common area at Cypress Point Apartments in Santa Cruz, CA at about noon on March 1, 2014. Plaintiff Nancy Gambino, was living at Cypress Point Apartments with her disabled mother and two small dogs. Defendant, Braddock & Logan (Braddock), managed the 240-unit complex for Cypress Point RE Investors, LLP (Cypress).
At approximately 8:30 on the morning of March 1, 2014, Nancy Gambino and her two small dogs were walking in the complex when one of Nancy's dogs unexpectedly relieved itself on a grass area next to the concrete walkway, leaving a pile of pet waste. Nancy wanted to pick up the pet waste but she did not have a bag with her at the time. Plaintiff had a limited income and was concerned because Braddock/Cypress had threatened fines of up to $50.00 for tenants that failed to clean up after their pets. She was still several hundred feet from her apartment and was concerned that she might be fined if she left the pet waste to retrieve a bag from home.
Plaintiff saw a pet waste station over 50 feet away from the sidewalk, in the middle of a grassy area. The pet waste station had a dispenser filled with plastic bags for pet waste. The pet waste station was installed, provided, and maintained by Braddock and/or Cypress in the common area of the complex. Plaintiff could see that, unfortunately, the grass was wet and a large mud puddle had formed at the corner of the grass area. To avoid the mud puddle, plaintiff chose another path across the grass farther to the right, that appeared safe. She started walking on the grass toward the pet waste station. As she got about six to eight steps onto the grass to retrieve a pet waste bag, she noticed that there were holes and indentations in the grass and that her shoes began to sink. Plaintiff then realized that by trying to get to the pet waste station, she had walked into muddy, oversaturated, and poorly drained grass littered with holes and indentations. She became concerned that it might not be safe to walk farther in the swampy landscaping due to the mud, water, and the holes or indentations, so she began to turn around to get back to the concrete walkway. As she turned to get back to the concrete, plaintiff lost her footing and fell to the ground.
Plaintiff contended that the defendants had improperly designed the area where the pet waste station was located. The location created a foreseeable risk of harm, as it required all tenants, regardless of age and/or ability to travel, across a grassy area to retrieve a pet waste bag. Plaintiff further contended that the defendants knew, or should have known, that the area was littered with hidden indentations and gopher holes, which created a tripping hazard. Plaintiff's experts concluded that the pet waste station should have been placed within 2-3 feet of a concrete hardscape, or in the alternative, a concrete pathway should be laid, creating a walkway out to the pet waste station.
Defendants contended that the area was not dangerous, and that any problems with the area were open and obvious, as it had rained over 3" in the preceding 4 days before the incident. Defendant contended that plaintiff knew the area was wet, and that she also was familiar with the area, as she had testified to both of the facts in her deposition. Defendant further contended that plaintiff merely "slipped on wet grass." Defendants' experts opined that there was nothing unsafe about the placement of the pet waste station, as these stations are placed "where animals go."
Injuries and Other Damages
Physical Injuries claimed by Plaintiff:
As a result of her fall, plaintiff suffered a bi-malleolar fracture of her left ankle. As a result she underwent an open reduction internal fixation at Dominican Hospital in Santa Cruz. Unfortunately, her fracture did not heal properly, and she underwent a second procedure, to remove the majority of the hardware approximately 15 months post-incident.
Her second surgery provided very little relief, and as such, she underwent a third procedure approximately 2 years after her incident. This third procedure involved the following: 1. A Left Foot Calcaneal Osteotomy, 2. FDL Tendon Transfer, 3. Gastroc Recession 4. Removal of Hardware, and 5. Brostrom/Gould Lateral Ankle Stabilization. After this third surgery, due to the underlying trauma and subsequent surgeries, plaintiff developed CRPS in her left ankle. Plaintiff's treating PM&R, Dr. Daniel Marcus, and retained expert, Dr. Steven Feinberg, concluded that the CRPS was moderate in nature and would result in the need for life-time care. Plaintiff's past medical specials were approximately $120,000, which were waived at trial.
At the time of the incident, plaintiff was an in-home caretaker for her mother, who was suffering from Alzheimers. As a result of this incident, plaintiff was no longer able to take care of her mother. She suffered $78,000 in past wage loss. Before this incident, plaintiff was a restaurant and food-service manager, and had planned to return to this profession. As a result of this incident, Dr. Feinberg concluded that plaintiff would not be able to return to this line of work. Plaintiff had approximately $314,000 in future wage loss. Plaintiff waived her past and future wage loss claims at trial.
- Special Damages Claimed - Past Medical: Waived
- Special Damages Claimed - Future Medical: $2,004,160 - $2,255,879
- Special Damages Claimed - Past Lost Earnings: Waived
- Special Damages Claimed - Future Lost Earnings: Waived
After the verdict was reached, and judgment was paid by the defendants, it was discovered that the pet waste station at issue in this case was moved to a location next to a concrete walkway, exactly where plaintiff’s experts said it should have been in the first place.