Data: A retired man (74 y.o.) stumbled and fell on an uneven paving slab on his way home from a store.
Injuries and consequences: Fibula fracture, surgery, eight months of rehabilitation therapy. He now walks with a stick.
The defendant’s arguments: It was a minimal defect of a slab and it could not have caused a fall. Even if it could, then under the existing law, cases with minimal defects should not be considered by the state courts. In addition, the defect was open and obvious and any person was able to see and overstep it. The plaintiff fell because of his negligence and inattention only, and nobody should pay him for that.
Our arguments: Based on expert’s opinion, we proved that in this case the defect is not minimal, because the height of uneven parts, which the plaintiff stumbled over, is more than half an inch. We presented accurate measurements of the defect’s size and the expert’s testimony (the road engineer confirmed that the defect in all parameters is not minimal). Due to the fact that our client was walking from the store with the shopping cart, which he pushed ahead of himself, he could not have seen the defect. Therefore, in this case, the defect can not be considered open and obvious. We also insisted that the concept of open and obvious should be different from case to case. The vision of the old man was not good enough to see the difference in merging colors of asphalt and the defect itself. So the defect was not open and obvious for this plaintiff.
Result: Taking into consideration the seriousness of the injury and the consequences, we demanded $1,000,000 from the defendant. The defendant offered $100,000. Medicaid and Medicare agreed to a $65,000 compensation for the plaintiff’s treatment. Before passing judgment by the insistence of the client, we agreed to accept a settlement of $360,000, taking into account that the defendant will also pay Medicaid and Medicare directly. Negotiations with Medicaid and Medicare and SSI were conducted by our lawyers.
