I like to win as much as the next lawyer but sometimes in litigation a “loss” can feel like a “win.” I recently closed a file that involved a 2011 trip and fall over a pallet left on the floor of an aisle – never an easy fact scenario to win.  As I happily close the file just before the end of 2017, in my heart this case feels like a win.

Here is some background. The incident was caught on surveillance footage and it shows the plaintiff purposefully pushed her shopping cart around ae pallet left empty on the floor of the aisle.  Just after getting around the pallet, the plaintiff entered the register aisle which had backed up to the front of the grocery aisle.  As the plaintiff entered the register aisle, she backed up her cart and as she stepped backwards – without looking where she was walking – she fell backwards onto the pallet.

We filed a motion for summary judgment because the pallet was open and obvious and the plaintiff was not distracted at the time of the incident. The footage showed she was done shopping and entering a register line.  The plaintiff walked backwards without looking behind her even though she just walked past the pallet but we argued that was not a distraction.  The plaintiff argued she walked backwards because someone else was walking down the aisle and she was moving out of their way.

The trial court granted our motion for summary judgment but the plaintiff appealed. The appellate court (wrongfully in my opinion), overturned the ruling and remanded the case back to the trial court.  The appellate court determined there was a question of fact whether the plaintiff was distracted at the time of the incident, even though she raised being distracted only in a post deposition affidavit presented in response to our motion for summary judgment.

Not long after the case returned to the trial court the parties agreed to a non-binding mediation. The plaintiff claimed she injured her knee in the fall, ultimately resulting in surgery several years after the incident.  At mediation, the plaintiff refused to accept less than six figures to settle the case so there was no settlement, even though the defense agreed to pay the mediator’s proposal of $66,000.

Rather than proceed to trial, after the treaters and experts were deposed the parties agreed to a binding arbitration. The plaintiff relied on treater opinion testimony and the defense retained a medical expert.  We argued the plaintiff was not truthful with her treaters when she denied prior problems with her knee and we proved she had pre-existing degeneration and a pre-existing ACL tear.  The fall caused a minor exacerbation of her arthritis at most, and it was resolved within weeks so the vast majority of her care was from the underlying arthritis and not casually related.

At binding arbitration, the plaintiff and store manager involved with the incident both testified and the deposition testimony of the treaters and expert was presented to the arbitrator.   The plaintiff requested a significant award.  The arbitrator ruled in the plaintiff’s favor but the plaintiff was found  50% contributory negligent so in the end, the plaintiff was awarded only $30,000.  After attorney’s fees and liens, it is unclear whether the plaintiff would personally receive anything from the award.

So even though this was not technically a win, I cannot complain (too much) about this result as I believe justice was done and the defense won in the end.