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Newberry v. Foods, Etc. IGE – Lake County

On Behalf of | Mar 1, 2008 | Results

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In this matter Jim Miller represented a grocery store in an action brought by a plaintiff who tripped and fell in the grocery store parking lot injuring her right ankle. The plaintiff was diagnosed with a right ankle fracture that required a closed reduction and was later supplemented with external fixation. She eventually underwent five surgeries on her ankle and her orthopedic surgeon advised that she would need a future fusion surgery. She claimed $171,000 in medical expenses and past and future wage losses of more than $250,000.  The case was tried before a jury in March 2008.

Prior to the incident, the grocery store had recently repaved the parking lot to bring the lot into accordance with ADA requirements which included the establishment of a sloped grade from the building to the lot. After the project was completed the owner of the grocery store noted that there was a dramatic drop off in the parking lot near the ramp where customers entered and exited the store. He decided to have the drop off fixed and approximately three weeks after the initial project was completed the repair to the parking lot was completed. The plaintiff fell near the dramatic drop off before the problem could be remedied.

Jim used a biomechanical expert and an engineer to show that the plaintiff did not encounter the drop off when she fell. Jim showed that the plaintiff’s fall was not consistent with the situation of tripping on an unexpected downward slope. After the fall, the plaintiff landed on her buttocks with her feet facing forward which is consistent with someone rolling an ankle. Had she fallen in slope she would have faced forward.

In closing, the plaintiff’s attorney demanded $2.1 million dollars. Jim asked for a defense verdict. The jury deliberated for two hours and returned a 12-0 verdict providing that Jim’s client was not liable for the plaintiff’s injuries. Since Jim had served a 998 offer for $100,000 to the plaintiff during the litigation, his client was entitled to recover not only its ordinary costs but expert fees too. Therefore, Jim’s client had a judgment in its favor and against the plaintiff for over $30,000. The last demand by the plaintiff to settle the case before it went to trial was $600,000.