On July 8, 2022, Walter Judge obtained summary judgment for his client, a national chain restaurant with a location in Vermont, in a premises liability, trip-and-fall case. The restaurant owns its building, but leases the ground it sits on from the shopping plaza landlord. The restaurant’s leasehold extends to the outside edge of the sidewalk around the restaurant.
At 6:00 PM in early November 2017, the plaintiff parked her car in the shopping plaza parking lot and walked toward the restaurant, where she was a regular patron. Just before reaching the sidewalk around the restaurant, she tripped on a parking curb. She claims she didn’t see it because it was “dark.” She sued the restaurant chain and the shopping plaza landlord claiming insufficient illumination. The overhead lights in the parking lot, controlled by the landlord, had not gone on yet. Nor had a pole light next to the outer edge of the restaurant’s sidewalk, which was on a timer controlled by the restaurant, gone on yet. The plaintiff’s attorney focused his aim on the pole light controlled by the restaurant, because it was the closest exterior light to where the plaintiff claimed she fell. As a result, after discovery and depositions, the shopping plaza landlord moved for summary judgment because it did not control that light, and the plaintiff chose not to oppose the motion. Accordingly, the Court granted summary judgment to the landlord.
Walter then moved for summary judgment on behalf of the restaurant, arguing, among other things, a) that it was not the restaurant’s property that the plaintiff tripped on, and b) in any event, the plaintiff offered no evidence of what the lighting level should have been and who should have provided it.
The Court’s decision in the restaurant’s favor does not turn on whether or not the parking lot was “too dark.” Instead, the decision is all about which defendant – the restaurant or the shopping plaza landlord – had the responsibility for lighting the parking lot. Based on the undisputed facts (the Lease, the deposition testimony, etc.), the Court agreed with the restaurant that it was not the restaurant’s responsibility.
Essentially, the Court ruled that there is no dispute that as she was walking through the parking lot toward the restaurant, the plaintiff tripped on a parking curb just outside the area leased and controlled by the restaurant, that is restaurant building and the sidewalk surrounding it. The Court noted that neither the parking lot nor the parking curb was the restaurant’s property, but rather the landlord’s, and that the restaurant had no duty (or ability) to illuminate the area outside of its own, leased premises. It cited both Vermont and non-Vermont case law (Pennsylvania, Massachusetts, New York) for the principle that a property owner or tenant has no duty to make adjacent, non-owned property safe – even commercial establishments whose patrons are known to traverse the adjacent, non-owned property, i.e., parking lots. The Court did note that the restaurant-controlled exterior pole light, adjacent to the sidewalk, might have added some light to the parking lot. But the Court said that that does not change the principle that it is the duty of the owner (i.e., the landlord) of the property in question (i.e., the parking lot and the curb) to make its property safe, not the duty of an adjacent property owner, i.e., the restaurant. The Court also cited Restatement (Second) of Torts § 323 (“undertaking”) and found that the plaintiff offered no evidence that the restaurant had undertaken to make the adjacent parking lot safe.
This is a good decision for retail establishments facing claims from patrons who are injured on property adjacent to, but not owned or controlled by, the establishment. It is particularly valuable for certain “inadequate outdoor lighting” claims.
Case Style: Emma Dowell by and through her attorney-in-fact Brandy Dowell v. Mary Cay Koen, DDS
Pictured, L to R: John Floyd Jr., John Floyd Sr.
Jurisdiction: Sumner County
Case Number: 83CC1-2021-CV-230
Trial Judge: Joseph Thompson
Date Verdict: June 30, 2022
For Plaintiff: Rick Piliponis and Sarah Martin, Higgins Firm (Nashville, TN)
For Defendant: John Floyd, Jr. and John Floyd, Sr., Wicker Smith O’Hara McCoy & Ford, PA (Nashville, TN)
Summary: Plaintiff, then 12, was missing permanent teeth under her K and T baby teeth. She had numerous dental problems as a young child, including GERD that led to tooth decay and cavities. After fracturing a tooth on some candy, she presented to Clair Poff, DDS. Dr. Poff advised that the options for treating this damages tooth were to extract the tooth and close the space with braces or try to restore with a crown and place an implant down the road. Dr. Poff recommended the plaintiff see her orthodontist Dr. Koen so everyone was on the same page.
The Dowells went to Dr. Koen who recommended extraction of the tooth (and the corresponding tooth on the other side which was normal) and to close the space with braces. The meeting lasted 15-20 minutes. The Dowells agreed and presented to Dr. Poff a month later for the tooth extraction of K and T. Mother testified it was a traumatic experience and based on prior records her daughter was extremely anxious when visiting the dentist for anything, much less extractions. This suit followed.
Dr. Poff was initially sued, but later dropped after a voluntary nonsuit and plaintiff re-filed only against Dr. Koen. Plaintiff alleged that Dr. Koen was negligent in recommending the extraction of K and T as the extractions and closing the space with braces was not a reasonable treatment plan. They also alleged lack of informed consent in that they were not apprised of the option of crowning the tooth and leaving the baby tooth in place long enough to have implants. Their case was supported by Emma’s pediatric dentist William Taylor, DDS and her orthodontist Sean Doyle, DDS. Both of these doctors are in competition with Dr. Koen for patients. She also retained an expert Dr. Gerald Samson out of Atlanta, GA to support her care and treatment. Dr. Koen defended that the literature supported this treatment plan, including a recent article from her expert witness Dr. James Vaden, DDS out of Cookeville, TN. The jury found in favor of Dr. Koen and against the plaintiff.
Injury/Damages: Subsequent jaw surgery, bone grafts, implants, deformity, pain and suffering.
Case Style: Cynthia Latimer v. University Foot & Ankle Centers, LLC and Caroline Gannon, DPM
Jurisdiction: Williamson County
Case Number: 2014-CV-358
Trial Judge: Joseph Woodruff
Date Verdict: June 10, 2022
For Plaintiff: Euel Kinsey, Thurswell Law (Detroit, MI) and Cary Bauer, Gilreath & Associates (Knoxville, TN)
For Defendant: John Floyd, Jr., and John Floyd, Sr., Wicker Smith O’Hara McCoy & Ford, PA (Nashville, TN)
Summary: Plaintiff underwent a Lapidus bunionectomy procedure to correct a bunion on her left foot. Following the procedure, she suffered from hypermobility of the first toe and required remedial surgery by Nashville podiatrist Paul Somers, DPM. In her complaint, she alleged that Dr. Gannon did not provide informed consent and that Dr. Gannon recommended surgery to correct recurring stress fractures. Defense countered that Plaintiff was consented on at least four different occasions for surgery related to a painful bunion (not stress fractures), including by Dr. Gannon’s partner Dr. Jeffrey Poole. Additionally, the complication following the procedure was known and does not equate to negligence.
Plaintiff claimed that as a result of the surgery she can no longer engage in daily activities, including running or flipping houses. She also claims that her foot causes her significant pain and that she incurred medical expenses to have a remedial surgery. Her claim was supported by St. Louis podiatrist Allen Jacobs, DPM. Defense testimony was supported by Dr. Gannon, Dr. Poole, and Covington, GA podiatrist Dr. Steven Carter.
Injury/Damages: Subsequent surgery, deformity, ongoing pain in foot
John Trimble of Lewis Wagner in Indianapolis, IN, along with his team, have received a unanimous Indiana Supreme Court ruling in a landmark Indiana constitutional case.
In 2021 the Indiana Legislature passed a law that would have allowed the legislature to call itself into a special session any time that the Governor issued an emergency order.
The law was in response to concerns by the legislature over the Governor’s emergency orders related to COVID. The Governor vetoed the legislation because the Indiana Constitution gives him sole authority to call a special session. The legislature then overrode the veto.
Governor Eric Holcomb then hired John and his firm, Lewis Wagner, LLP, to sue the legislature to have a court determine whether it was constitutional. The Indiana Supreme Court, in a closely watched and politically charged case, determined that the Governor was correct and ruled in his favor on all 8 issues in the case.
Clients of DRI member Jerry Fazio of Owen & Fazio, P.C. in Dallas Texas obtained multiple victories in two different Texas Court of Appeals on July 21, 2022:
In Lupe Holdings, LP et al v. Sanchez, the First Court of Appeals granted a writ of mandamus filed by Owen & Fazio, P.C. on behalf of their client. The Court ruled that the trial court abused its discretion when denying a motion to compel arbitration. The Court of Appeals held that the arbitrator, not the trial court, was the only appropriate entity to determine if the employee’s claim was filed within the agreed upon statute of limitations in the arbitration agreement. Further, the Court held that an employer has no legal duty to initiate arbitration against itself within the statute of limitations simply when the agreement says the company may.
In Arrow Personnel, LLC et al. v. Grant, the Second Court of Appeals affirmed the trial court’s order granting the motion for summary judgment filed by Owen & Fazio, P.C. on behalf of their client. The Court ruled there was no genuine issue of material fact to the negligence element of duty sufficient to proceed to jury trial. Owen & Fazio’s client was a staff leasing agency and nonsubscriber to the Texas Workers’ Compensation System. The contracted with a manufacturing company, and subscriber to the Texas Workers’ Compensation System, to strictly provide employees while the manufacturing company retained control of the workplace and providing necessary safety measures. An employee was injured when he was struck by steel I-beams falling form a forklift/conveyor system operated by an employee of the manufacturing company. Although the injured employee was an employee of the staffing company, Owen & Fazio, P.C. successfully utilized the “right to control” test to brief and argue that their client did not owe a duty to provide a safe workplace or have control of the liability-producing aspects where the staffing company did not provide task-specific training, supervision, or equipment and did not control the property or task instructions. Therefore, the staffing company did not owe the nondelegable duties that nonsubscriber employers owe their employees. The manufacturing company also successfully barred claims against them filed by the employee pursuant to the Exclusive Remedy Rule.
Wheeler Trigg O’Donnell’s Theresa Wardon Benz and Kevin Kuhn recently won an important victory in the Colorado Court of Appeals for a doctor client in Scholle v. Ehrichs. In an issue of first impression, the court held that the trial court abused its discretion in finding good cause to exceed the $1 million cap imposed by the Colorado Health Care Availability Act (HCAA) and awarding the entirety of a nearly $10 million jury verdict in a medical-malpractice case. This is the first time an appellate court has examined the collateral source provision of the HCAA, and it provides a way to start chipping away at awards of billed medical damages—which, as this case shows, become nearly punitive when compared to the amounts actually paid by insurers.
Of the original award, $6 million was for past medical damages billed. Post-trial evidence showed that only $1.7 million of that amount was paid by the plaintiff’s insurers. Although the Colorado Supreme Court has interpreted the contract exception to the collateral source rule to allow a plaintiff to recover the amounts billed, Benz argued that the HCAA’s collateral source provision (CRS 13-64-402) governed and that this provision required the trial court to take into account the amounts owed to insurers before entering its judgment. In this case, the plaintiff’s insurers had not filed a notice of subrogated interest, which meant they waived their rights to subrogation and nothing was owed. The appeals court remanded the case for the trial court to do a proper good-cause analysis and take into account the fact that nothing was owed for past medical damages. Because the plaintiff passed away during the pendency of the appeal (from causes unrelated to the alleged malpractice), future damages may be reduced as well on remand.
Shuttleworth & Ingersoll shareholders Tricia Hoffman-Simanek and Vince Geis, along with the support from attorney Ross Andrews, obtained a defense verdict in a long-term care negligence case venued in Humboldt County, Iowa. Plaintiffs alleged Defendant, a long-term care facility, was negligent in the care of one of the residents, primarily pertaining to the prevention and recurrence of heel ulcers/pressure ulcers. Plaintiffs’ Petition also sought punitive damages. Plaintiffs’ firm – a well-known long-term care Plaintiffs law firm in Iowa – asked the jury for over $2 million dollars for pain and suffering/loss of full body and mind, as well as loss of consortium for two adult children. After a seven-day trial, the jury made a finding of no liability.
Tricia Hoffman-Simanek litigates medical malpractice and senior living and long-term care cases. Her previous time serving on the Board of Nursing Home Administrators (Iowa’s licensing and disciplinary board) helped Tricia understand and navigate the different nuances of long-term care litigation.
Vince Geis, similarly, focuses medical malpractice and senior living and long-term care litigation. He has represented nurses, physicians, clinics, hospitals, and nursing homes in front of Iowa juries.
Ross Andrews is a new DRI member, having just joined Shuttleworth & Ingersoll’s medical malpractice group in September 2021. He is already making an impact in his short time at the firm. His primary area of focus is senior living and long-term care litigation.
Case Name: Estate of Ellen McCullough et al v. QHC Humboldt South, LLC
Firm Name: Shuttleworth & Ingersoll, PLC
Trial Team: Tricia Hoffman-Simanek, Senior Vice-President; Vince Geis, Vice-President
Support Team: Ross Andrews, Associate
City of Practice: Cedar Rapids, Iowa
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