In the age of nuclear verdicts, Partner Tyler Finnegan recently defended a large local developer/property owner and a property management company in a premises liability case over damages in a three-day long trial before a St. Louis City jury. As one of the Plaintiffs was leaving a grocery store, she slipped on ice, that appeared to be water, on the upper parking deck and fell, severely fracturing her leg and ankle in two places. Plaintiff’s husband also made a claim for loss of consortium.
Almost a year prior to Plaintiff’s fall, both the developer/owner and management company had identified a low point of the parking garage during a warranty walk-through following construction. The area was on the upper parking deck that encroached on a handicap access aisle as well as the bike rack area. Water would pool and fail to drain from that area. Unfortunately, the two defendants did not remedy the low point prior to the winter season and the ice formed and was untreated prior to the fall. The fall was captured on video. Following the fall, Plaintiff was taken by ambulance to Barnes Hospital and had same day surgery where the surgeon installed two plates and 10 screws in her ankle. Plaintiff also had a physician testify that she would likely need to have additional surgery in the future.
Despite the notice of the low spot and a video showing the Plaintiff fall on ice as well as the plaintiff calling a Human Factors and Code Violation expert to testify at trial and his treating surgeon, Tyler persevered in the case by utilizing social media monitoring over a long period of time showing plaintiff’s activities on vacations, recreational activities and social activities that discredited plaintiff’s claim of limited physical abilities. In addition, Tyler established with the plaintiff’s expert and the plaintiff that there was an alternate route the plaintiff could have taken that day and decided to take the shorter route that led to the area of the fall.
At trial, Plaintiff’s counsel demanded $1.2 million on behalf of the Plaintiff who fell and $300,000.00 for Plaintiff Spouse. Prior to trial, Plaintiffs’ lowest demand was $850,000.00. Defendants had offered $150,000.00 prior to trial with the understanding there was room to move. After convincing the jury that Plaintiff was 25% at fault, the Plaintiff was awarded only $300,000.00 and a defendant’s verdict on the Spousal claim. This result highlights the importance of establishing the proper foundation for use of social media in discovery and at trial and the impact such evidence can have in a final result.