Tharpe & Howell

News : Tharpe & Howell Defeats Personal Injury Actions With Motions For Summary Judgment

THARPE & HOWELL DEFEATS PERSONAL INJURY ACTIONS WITH MOTIONS FOR SUMMARY JUDGMENT Firm Associates Sevan Gobel, Leslie Guillon, Gene Sharaga, and Dan Stevens have impressive track records in defeating personal injury actions by way of Motions for Summary Judgment. Firm Partner Charles May, who heads-up this aggressive litigation team, recommends that a Summary Judgment Motion be filed when the underlying facts are clear: The $250,000 "Trip and Fall Claim" In this case, plaintiff alleged she tripped and fell over a brick display in the garden department of the client's department store. As a result of the fall, plaintiff claimed injuries to her wrists, chest and knees, as well as displacement of a breast skin expander that had been implanted as part of her on-going cancer treatment. Plaintiff's Statutory Offer prior to the hearing on the Firm's Motion for Summary Judgment was over $253,000! Given the underlying facts of this case, the Firm filed a Motion for Summary Judgment on behalf of its department store owner client. After consideration of multiple moving and opposition papers, and lengthy oral argument of counsel, the Court found there were no triable issues of material fact based on plaintiff's own testimony that she saw the display, and the brick she fell on, before her fall. Accordingly, the Firm's Motion for Summary Judgment was granted. The Ladder Incident This action was brought by a plaintiff who claimed that, while shopping, she tripped over the bottom wheel of a ladder adjacent to the aisle, and sustained injuries. Following the incident, plaintiff underwent arthroscopic decompression/ debridement in her right shoulder. She also alleged cervical and lumbar injury, and presented a loss of earnings claim. Her husband presented a loss of consortium claim. The Firm brought a Motion for Summary Judgment on behalf of its store owner client, on the theory that the ladder was open and obvious to the plaintiff, and that the plaintiff observed it prior to tripping over it. The Court agreed, and the Motion was granted. The Canopy Bar Here, plaintiff tripped over a metal bar support on a canopy frame in the garden department of the Firm's department store owner client. As a result, she claimed injuries to her lower and middle back, left shoulder, left arm, left hip, left knee, left ankle and left foot. Plaintiff rejected the reasonable settlement offers made at Mediation. At deposition, plaintiff testified that she did not see the portion of the metal bar she allegedly tripped on prior to the fall. In its Motion for Summary Judgment, the Firm argued that plaintiff was aware of the totality of the canopy and its frame, and that the condition was open and obvious and that plaintiff was aware that there were potted plants surrounding its base. The Court further held that the condition was not hidden, latent, or concealed peril that would require a warning as such structures are common to garden displays, especially in warehouse-type stores. The 25 Foot Scaffold Fall In this action, the Firm's Motion for Summary Judgment dismissed its defendant property owner client from a high profile construction accident case, in which plaintiff fell 20 to 25 feet from a scaffold. Plaintiff sustained numerous injuries, most significantly a T7 fracture, which caused him to undergo a T4 to T11 spinal fusion. He also sustained a right clavicle injury, right rib cage injury and injuries to his back, right hip and right shoulder. As a result of his injuries, plaintiff required the on-going use of a cane. Medical specials in this matter exceeded several hundred thousand dollars. The Firm brought a Motion for Summary Judgment on behalf of its defendant property owner client based upon the fact that it had no responsibility on the site for supervising subcontractors and was not responsible for overseeing safety. The Firm also utilized the Privette cases, which provide that the peculiar risk doctrine does not apply to a property owner who has no direct negligence when the plaintiff is an employee of a subcontractor who provides Workers' Compensation benefits. The Negligent Entrustment Claim In this case, plaintiffs (a father, mother, and their minor sons) were injured in an automobile accident after they had been pulled over by a California Highway Patrol Officer. Plaintiffs were traveling on I-15 in their Chevrolet Suburban towing a boat, when they were pulled over by the Officer. The CHP Officer did not pull the plaintiffs' vehicle far enough off of the freeway so the rear-end of the boat trailer was resting on or just inside the line of the emergency lane on the right shoulder. Defendant truck driver, who was an independent contractor to a delivery contractor for the Firm's client (store owner), was driving a vehicle, when he struck the rear-end of the boat trailer causing the boat to be propelled into the plaintiffs' Suburban. This resulted in injuries to plaintiffs as well as the CHP Officer. The CHP Officer filed a separate suit that did not name the Firm's client (store owner) as a party. Plaintiffs filed a Complaint against the Firm's client (store owner) for negligent entrustment, negligent hiring and negligent retention. At the deposition of the owner of the delivery service, the owner testified that the vehicle driven by the truck driver was owned by the truck driver, not the delivery service. Further, as part of the contract between the Firm' client (store owner) and the delivery service, the delivery service was responsible for performing DMV checks on all of their drivers and ensuring that they were competent employees. The Firm brought a Motion for Summary Judgment as to its client (the defendant store owner) arguing that because the store did not own the vehicle being driven by the truck driver, there could be no claim for negligent entrustment. As to plaintiffs' claims for negligent hiring and negligent retention, the Firm argued that the store did not know, or have reason to know, that the delivery service and/or the truck driver were unfit for the tasks they were independently hired to perform. After reviewing the Firm's Motion for Summary Judgment, plaintiffs agreed to dismiss their claims against the Firm's client, for a waiver of costs. Subsequently, the Court granted the Firm's Application for Good Faith Settlement, preventing any other party from naming or cross-complaining against the store owner client in this case. The Customer Service Counter In this action, plaintiff sustained injuries to her hand after a metal pipe slid off the customer service counter at the Firm's client's store and struck her. The metal pipe was placed along the customer service counter by a customer who intended to return it. The Firm filed a Motion for Summary Judgment on behalf of its client store owner, arguing that the owner had no notice that the customer's placement of the metal pipe along the counter created a dangerous condition and therefore no duty arose to the plaintiff. The Court agreed and the motion was granted. The Box Trip and Fall In this case, the Firm defended a department store owner in a claim brought by a plaintiff who tripped over several boxes that were located on the floor of an aisle of the store. As a result, the plaintiff sustained a comminuted and displaced fracture of the right proximal humerus and underwent surgery. Medical specials totaled almost $10,000.00. The Firm deposed plaintiff with the preparation and filing of a Motion for Summary Judgment in mind. In this regard, she testified on 29 different occasions throughout the deposition that she saw the boxes before she entered the aisle and was aware of them as she walked through the aisle. Following her deposition, the Firm prepared a Motion for Summary Judgment arguing that the claimed "dangerous condition" was open and obvious, and therefore relieved its client store owner of liability. Then plaintiff, just prior to the filing of the Firm's Motion, made substantial and material changes to the liability portions of her deposition. These changes were "allowed" by the Code of Civil Procedure, and resulted in the denial of the Firm's Motion for Summary Judgment. Although the Motion was denied, it highlighted the weaknesses in plaintiff's case to both her counsel and the Trial Judge and subsequent negotiations with plaintiff's counsel yielded a dismissal of her claim in its entirety in exchange for a waiver of costs. The Flatbed Dolly Trip and Fall In this action, plaintiff alleged injuries to her left knee, ribs, stomach, hands, arms, trunk and legs after she tripped over a flatbed dolly inside the entrance doors of the client store owner. In her Complaint, she claimed that she was blinded by the sun as it reflected off the entrance doors and was unable to avoid walking into the flatbed dolly. She also alleged that the return line was negligently located so as to create a dangerous condition by allowing customers to block the entrance to the store. The Firm filed a Motion for Summary Judgment on behalf of the store owner, alleging that it did not owe plaintiff a duty to protect her from the subject dolly, plaintiff's injuries were not foreseeable, the location of the dolly was open and notorious and the store is not liable for superseding acts of God. While the Motion was pending, the Firm participated in a non-binding Arbitration which resulted in a verdict for the defense!This apparently got the attention of the prosecution and, before the hearing on the Firm's Motion, the case was resolved for nuisance value of $500. http://

Related Attorney(s): Stephanie Forman Charles May Gene B. Sharaga Related Practice Area(s): General Litigation

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