Defense Wins – Kind Of – Fall On A Grape

I recently had another technical “loss” that was actually a complete win in not only my opinion, but more importantly, in the opinion of my clients. The facts of the case were actually very simple but the plaintiff did several things to greatly complicate the case.  The plaintiff claimed she slipped and fell on a grape in the produce department of a grocery store.  She landed on her knee and claimed she sustained a patella fracture and a meniscal tear as a result of the fall.

A store employee testified she had just been in the area of the fall 4-5 minutes beforehand, cleaning the floor and stocking bread. She stated there were no grapes on the floor at the time but several customers were in the area during the minutes after she left and before the plaintiff fell.  Based on that testimony, we moved for summary judgment, but the court denied our motion.

The plaintiff testified that as she was sitting on the ground after her fall she saw some brown dots along the edges of the grape and possibly a footprint in the smashed grape so she believed the grape had been on the floor for a long time. However, she admitted she had just entered the store one minute before so she had no idea how long the grape was actually on the floor.  Even so, the judge ruled the brown dots on the grape were a sufficient “question of fact” as to constructive notice to deny the motion.  (Another amazingly well thought out legal analysis by a Cook County judge).

From a damages perspective, the case was initially quite basic because the plaintiff’s knee was immobilized, she received physical therapy and no surgery was required. Once we deposed the plaintiff, however, we learned things were a little more complex.  A year after her fall at the store the plaintiff fell off a chair and during her deposition we learned for the first time she was claiming that fall was caused by her knee giving way.  Unfortunately, the fall resulted in the plaintiff’s dominant hand’s wrist being shattered and requiring surgery.  This turned the case from involving very minor damages into a six figures damages case.

Before any medical depositions were taken, we made a very reasonable settlement offer which paid for the knee (ignoring all liability arguments) and offered some additional money for the risk of the wrist being involved. The plaintiff flatly denied the offer and the case continued.

By the close of discovery, two orthopedics, a physical therapist and two medical experts were deposed. We felt very strongly the plaintiff could not connect her wrist injury to our case but for many reasons, we did not like the idea of a long, expensive trial.  We suggested a binding arbitration hearing and the plaintiff agreed.  We did not want a high/low agreement and the plaintiff did not request such an agreement so we went into the hearing at the mercy of the retired court.

As with any case, my goal was to win. I thought summary judgment should have been granted and I believed a not guilty ruling at the hearing was warranted – all based on the employee’s inspection of the area 4-5 minutes before the incident.  Even though I did not receive either ruling, the award we did receive was close to perfect.  The plaintiff requested an award of almost a half a million but at the end of the day she received $23,000, which is less than her medical lien. As my client always says, this was another great example of greedy people finish last.

This is yet another case which proves what a great resource binding arbitrations can be in personal injury litigation. The cost is about 1/100 of a trial, preparation time is significantly reduced, few witnesses are needed and the evidence takes less than a day to present.  Even if the ruling is a little more than you hoped, the money saved from not going to trial makes the experience worthwhile overall.


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