DRI member Aaron J. Silletto a partner in the Louisville, Kentucky, law firm of Goldberg Simpson, LLC, recently tried a premises liability case before a Muhlenberg County jury, which resulted in a win for the defense.
Plaintiff Randy Adams was a customer at a self-service car wash operated by the defendant in Greenville, Kentucky, in January 2014. Though there was some snow on the ground and temperatures had been below freezing for over two and a half days at the time Mr. Adams used the car wash, he wanted to rinse off his pickup truck to remove the road salt and grime on his windshield. Mr. Adams sprayed much of his truck, and inserted additional money into the car wash’s coin box to complete the job. When he turned around from the coin box, his feet slipped on a small patch of ice, and he fell to the ground, striking his left elbow and the back of his head on the concrete floor. At trial, Mr. Adams attributed a chip fracture in his left elbow, with resulting decreased range of motion, and two cervical fusion procedures to correct disc bulges, on his fall at the car wash. His wife, plaintiff Lydia Adams, claimed damages for loss of spousal consortium.
The jury heard testimony from Mr. Adams’s treating family doctor, Kristi Chappell, M.D., and treating orthopedic spine surgeon, Edward Mackey, M.D. Dr. Chappell acknowledged that Mr. Adams’s had experienced neck and back pain for years before the fall, and his neck symptoms were getting worse with time. However, she opined that the swelling Mr. Adams experienced after his fall was not present before the fall, leading her to conclude that the fall had exacerbated his preexisting condition. Dr. Mackey had performed an anterior cervical decompression and fusion C5-6 and C6-7 on Mr. Adams in April 2014. Later, when the bone graft started collapsing at C5-6, Dr. Mackey performed a two-level corpectomy spanning C4 to C7 in September 2014. In his video deposition played to the jury, Dr. Mackey testified that Mr. Adams had told him that he was asymptomatic before the January 2014 fall, which led Dr. Mackey to attribute causation to an injury sustained in the fall. When confronted with Dr. Chappell’s records demonstrating that Mr. Adams’s neck pain symptoms had been long-standing and progressing, Dr. Mackey then testified that it would be “difficult to argue” that Mr. Adams’s fall caused his symptoms.
The jury also heard testimony from two defense IME doctors—Timothy Allen, M.D., psychiatry, and Michael Best, M.D., orthopedic surgery. Both IME doctors opined that Mr. Adams’s mental and physical issues, respectively, were long-standing, and that, other than a brief, temporary exacerbation of the physical pain symptoms in his neck, none of his complaints were attributable to the fall at the car wash. Both doctors opined that, had the fall never occurred, Mr. Adams was likely to end up in the same mental and physical condition in which he now finds himself. The defendant also put on testimony from Patrick Altvater, P.E., a civil and municipal engineer, who opined that the car wash was designed, constructed, and maintained according to the standards of the industry. Specifically, two warning signs were prominently displayed in the car wash bay used by Mr. Adams—one that read “Use Caution When Wet or Icy” and another that said “Use Caution: Slippery Conditions May Exist on These Premises.” Finally, the defendant called Joshua Durkee, Ph.D., meteorology, who reviewed for the jury the weather conditions in Greenville for the week prior to the accident, testified regarding the rate at which water could freeze in the conditions present at the time of the accident, and opined that Mr. Adams had created the ice himself on which he ultimately slipped, by spraying his truck in sub-freezing temperatures.
After deliberating little more than an hour and a half, the jury returned an 11–1 defense verdict on the issue of liability. A conforming judgment has been entered by the court. See this link for the original news release.