$9.9 million net verdict for 70-year-old in trip and fall at restaurant. Los Angeles County.
Studio publicity head trips on step in restaurant converted from residence built in 1928. Quadriparesis. Farmers Insurance failed to settle within policy limits.
- Case Name: Arlene Ludwig v. Hacienda Paraiso, a Calif. Corp.
- Court and Case Number: Los Angeles Superior Court / EC057068
- Date of Verdict or Judgment: Tuesday, August 26, 2014
- Date Action was Filed: Thursday, October 13, 2011
- Type of Case: Premises Liability, Slip and Fall
- Judge or Arbitrator(s): Hon. Robert O'Brien
Plaintiffs: Arlene Ludwig, 70, publicist
Defendants: Hacienda Paraiso dba D'Cache Restaurant
- Type of Result: Bench Verdict
- Gross Verdict or Award: $16,552,588.11
- Net Verdict or Award: $9,931,552.87
Award as to each Defendant:
Verdict only as to Hacienda Paraiso, the only named defendant at time of verdict.
- Contributory/Comparative Negligence: 40% to plaintiff
Past and future medical: $5,563,635.11
Past and future lost earnings: $988,953
Past pain and suffering: $2,000,000
Future pain and suffering: $8,000,000
- Trial or Arbitration Time: 30 days (15 days per defense counsel)
- Post Trial Motions & Post-Verdict Settlements: Defendant is currently pursuing post-trial motions, including to Stay Enforcement of the Judgment and for New Trial.
Attorney for the Plaintiff:
Joseph Daniel Davis, Pasadena.
Attorney for the Defendant:
Veatch Carlson, LLP by Bruce Schechter and Timothy Fitzhugh, Los Angeles.
Plaintiff’s Medical Experts: Eli Baron, M.D. spinal surgery, (treating physician), Los Angeles.Joel Rosen, M.D., rehabilitation, (treating physician), Northridge.Steven Drell, M.D., internal medicine, (treating physician), Sherman Oaks.
Plaintiff's Technical Experts: Brad Avrit, , civil engineering, Marina del Rey.David Fractor, Ph.D., economics, Pasadena.Sara Guentz, RN, life care planning, Long Beach.
Defendant's Technical Experts: John Tyson, mechanical engineering, Encino.
Facts and Background
Facts and Background:
On July 6, 2011 Arlene Ludwig tripped and fell following lunch at the D'Cache restaurant in Toluca Lake. No alcohol was involved. She tripped over a 6-inch single step leading from the foyer/dining room to the upper level where the restrooms were situated.
Plaintiff struck her head on the ladies' room door, her head snapped back, and she suffered what is known as a cervical cord syndrome, or partial quadriparesis. Plaintiff has limited use of her upper and lower extremities and requires caregiver assistance 24/7. Arlene Ludwig had been employed by the Walt Disney Studios as head of West Coast publicity and was a 49-year employee at the time of her injury. Though age 70 when injured, she intended to work until at least age 80.
The restaurant premises was converted from a 1928 Spanish-style bungalow, built with a sunken entryway and living room, to a commercial establishment in 2006 – 2007. The step between the sunken area and the present-day bathrooms was the point at which plaintiff tripped and fell.
That the re-model was subject to the 2002 edition of the Los Angeles Building Code. Sec. 1003.2.6 which required that all elevation changes of less than 12 inches along a path of travel be covered by a ramp. That single steps are widely recognized as a dangerous hazard since the eye doesn't easily perceive slight floor elevation changes such as in this case.
That when the owner of the residence obtained a building permit for a change of use he submitted a floor plan to the building department that showed that the floor was completely level rather than an accurate plan which should have disclosed the 6-inch elevation change.
That the L.A. Department of Building & Safety employee who issued the permit stated that, had he been made aware of the change in elevation, he would have required that the step be ramped per LABC 1003.2.6. That during the four years the D'Cache was open before the fall, a waitress testified that the staff, the owners themselves, and customers had stumbled over the step, though no one had been injured.
Hacienda Paraiso, a Calif corp. that operated the D'Cache, argued that the step over which Ms. Ludwig fell was not a dangerous condition. The area of the step was lit with more than 1 foot-candle of light as per code. Also, the condition was “open and obvious” to patrons, easily visible with multiple visual cues of its presence; that no patron or employee had previously tripped over that particular step (or any other step when they were paying attention) and Ms. Ludwig was warned about the step. Also, the subject step did not need to be ramped because it was not within an egress path of exit travel.
That, per a waitress who testified at trial, during the four years the restaurant was open before the fall, neither the staff nor the owners themselves or customers had ever stumbled over that step; that customers, including plaintiff, were warned to “watch your step.”
That plaintiff’s experts testified she will continue to regain function throughout her life. That plaintiff has regained considerable use of her legs, does not use a wheelchair for transportation, and can walk with benefit of a walker. Also that she had pre-existing arthritis and a rotator-cuff tear in her right shoulder which interfered with the use of her upper extremities and for which she was under a doctor’s care at the time of the incident.
Injuries and Other Damages
Physical Injuries claimed by Plaintiff:
Plaintiff has limited use of her legs and can traverse short distances in a walker. Her use of her upper extremities is even more limited. Plaintiff suffers from nightly spasms which disturb her sleep. She needs full-time caregiver assistance.
- Special Damages Claimed - Past Medical: $1,262,376.12
- Special Damages Claimed - Future Medical: $4,301,259
- Special Damages Claimed - Past Lost Earnings: $332,880
- Special Damages Claimed - Future Lost Earnings: $988,953
Demands and Offers
- Plaintiff §998 Demand: In Sept. 2012 plaintiff made a CCP sec. 998 offer to settle for $1.999,999. Defendants allowed the offer to settle to expire.
Defendant was insured with a $2 million policy by Farmers.
Hacienda Paraiso filed for bankruptcy protection before trial. The BK court lifted the stay so the matter could proceed to trial. Plaintiff negotiated an assignment of the insured's bad faith/excess damage cause of action from the BK trustee for $7500 subject to BK court approval.
On the day the court was to approve the assignment, Farmers' attorneys showed up to overbid plaintiff in order to "buy up" its own bad faith cause of action. After two hours of auctioning, plaintiff was forced to bid $220,000 to the BK trustee for the bad faith assignment. The court granted its approval. Without the assignment, plaintiff would be limited to the $2 million policy limits.
Per defense counsel:
Plaintiff also named the restaurant owner, Jairo Gamba, as a defendant, but dismissed him at the end of trial before closing arguments.
The court, upon motion by plaintiff, excluded five of defendants’ experts (two liability experts and three damage experts) from testifying, purportedly on the basis the experts had not given depositions prior to the initial “discovery cut-off date,” over a year before the commencement of trial. The depositions of these experts were repeatedly offered to plaintiff during the intervening year, but plaintiff’s counsel refused to take them, purportedly on the basis it was after the cut-off date. The exclusion of these experts is one of the subjects of defendant’s motion for a new trial, which is pending.