Supermarket trip and fall. Back injury to "eggshell" plaintiff. $490K. Santa Clara County.

Facts and Background

• Facts and Background:

  On June 5, 2014, plaintiff Eddie Gale Stevens, Jr., 72, tripped and fell over a pallet directly inside the front entrance of the FoodMaxx grocery store on Parkmoor Ave. in San Jose. The incident was captured on video. Mr. Stevens was able to get up under his own power and continue shopping. He did not report injury at the scene. The next morning he woke and was suffering from whole body jerking, pain in his upper back, shoulders and legs. His wife took him to Kaiser Hospital in San Jose.

• Plaintiff's Contentions:

  Plaintiff contended that the pallet constituted a dangerous tripping hazard, especially since it was placed directly next to the front entrance of the grocery store. Plaintiff's safety expert, Brad Avrit testified that in a big box grocery store, where items are placed on pallets, the industry standard requires that these displays be at least 3 feet high, and must be monitored to ensure the pallets remain adequately stocked with product. This is especially true for pallets directly next to the front entrance. He testified that the conduct of the defendant grocery store fell below the standard of care.

  In addition, during discovery a former Foodmaxx employee testified that he was trained that a pallet left on the floor was a tripping hazard and if he had seen the pallet in the condition it was at the time of the fall, he would have removed it, because it was dangerous. A current employee testified in her deposition that her practice was to follow the mantra “Don’t pass it up, pick it up.” This meant they should always be on the lookout for problems. However, she was seen on the surveillance video walking past the dangerous condition 18 minutes before the fall, and didn’t do anything to remedy the problem.

  When the person-most-knowledgeable for safety at the store, who also happened to be the store manager, was deposed and asked about whether he thought of customer safety when he was designing displays of products on pallets, his testimony was “No. I don’t think of safety, I think of sales.”

• Defendant's Contentions:

  The defendant contended that the pallet was not dangerous, and even if it was, it was open and obvious. The defense pointed to the fact that for 55 minutes before the fall, when the pallet was in the alleged dangerous condition, a number of customers walked past the pallet with no problems. Defendant also contested injuries; contending that the fall, at most, only resulted in minor soft tissue damage, which would have resolved completely in six weeks.