Falling Merchandise - Lawyers Weekly USA - 11-29-99

November 29, 1999 Cite this Page: 99 LWUSA 1096

Verdicts & Settlements

Lawyers Win Half Million for Trip-and-Fall
By Rebecca Conklin

In an unusually large trip-and-fall verdict, a Colorado jury awarded $519,000 to a woman who broke her jaw and injured her neck and back when she stumbled over a cement block left in the doorway of a Wal-Mart store.

The defense appealed claiming the plaintiffs didn't prove the store knew about the hazard and that the evidence didn't support punitive damages. The Colorado Court of Appeals upheld the verdict, but Wal-Mart has petitioned to bring the case before the Colorado Supreme Court.

The verdict included $60,000 in punitive damages and $100,000 for emotional distress in addition to $116,000 in medical expenses and $243,000 for permanent physical impairment and disfigurement, according to the plaintiff's attorneys.

Jurors found plaintiff Lola Chamberlain 30 percent negligent, reducing her total recovery to $363,300. With interest, Chamberlain will received a sum close to the full award, her attorneys say.

Chamberlain's attorneys attribute the size of the verdict to Wal-Mart's carelessness and deceptive behavior, and the fact that the plaintiff was a likeable person with serious injuries.

Wal-Mart's attorneys could not be reached for comment.

Chamberlain, 63, suffered the injuries in January 1994 while shopping at a Wal-Mart in Aurora, Colo., with her daughter and grandchild. Wal-Mart employees had used a cement block earlier in the day to prop open a door to the superstore because the doorstop was broken, according to plaintiff's attorneys Brenda Sauro and Jeff Hyman. After closing the door, the employees left the cement block in the doorway.

Chamberlain never saw the cement block because the doorway was poorly lit and she was carrying her grandchild, Hyman says. Chamberlain tripped over the block and, trying to protect her grandchild, stumbled into a nearby brick wall before falling to the ground.

She injured her neck and back and fractured her jaw, which had undergone surgery for TMJ (temporomandibular joint syndrome) three weeks earlier.

Chamberlain had to undergo three more jaw surgeries to repair the damage from hitting her face on the wall. One of the surgeries replaced her jaw bone with metal implants, Sauro says. Chamberlain must attach her jaw to a machine every night that continuously opens and closes her mouth, preventing the cartilage that forms scar tissue around the implants from hardening the joints.

The surgeries also changed the shape of Chamberlain's face, Sauro says.

The neck injury required cervical fusion surgery which left her with a permanently stiff neck. The disk injuries to Chamberlain's lower back did not have a surgical solution, Sauro says.

Wal-Mart Blunders

Wal-Mart claimed that Chamberlain should have seen the cement block and that Chamberlain was faking her neck injury.

That tactic backfired, according to the plaintiff's attorneys.

Sauro says the corporation hired a private investigator to take surveillance a video of Chamberlain near her home in Pennsylvania. But instead of catching her without her neck brace, the investigator captured her on videotape in her neck brace placing wreaths on the graves of soldiers on Memorial Day.

The plaintiff's attorneys knew Wal-Mart takes surveillance videos of plaintiffs, so they asked for the video during discovery, Sauro says. Wal-Mart produced the videotape, and the plaintiff's attorneys showed it to the jury.

Hyman says the video reinforced the image jurors already had of Chamberlain based on how she conducted herself in court: That she was a nice, honest, considerate lady.

The jury was further incensed to discover that Wal-Mart hid photographs an employee took of the accident scene, Hyman says.

Chamberlain and her daughter remembered someone taking photographs at the scene, but during three years of pretrial wrangling, Wal-Mart lawyers insisted they did not have the pictures, says Hyman, who handles cases against Wal-Mart nationwide.

During discovery, Wal-Mart denied having either the photographs or a statement allegedly made by a Wal-Mart employee who arrived at the scene immediately after Chamberlain fell.

So Hyman took a creative approach. Chamberlain's daughter had recently reached a small settlement for injuries to her daughter in the same incident. Three weeks before Chamberlain's trial, her daughter called Wal-Mart headquarters in Arkansas and asked for the photographs of the incident and the file pertaining to her child's claim.

The Wal-Mart employee she contacted retrieved the file and told Chamberlain's daughter that a sticky note on the file said that it had been sent to Wal-Mart's attorneys in Colorado, according to Hyman. So the plaintiff's attorneys filed a new motion to compel, and the judge held a hearing immediately before the trial. Hyman says Wal-Mart had new attorneys, who said they couldn't find the file and photographs.

Two days before closing arguments, just as the plaintiff's attorneys were finishing their case, the defense produced the photographs. One showed the cement block and the scene exactly as Chamberlain and her daughter had described it. Hyman says the court sanctioned the Wal-Mart attorneys.

The photographs' late appearance turned the jury against Wal-Mart, according to Hyman. The defense had taken the position during trial that they had lost the photographs, so when they produced the photographs at the last minute, Hyman says, jurors saw that Wal-Mart had hidden them.

"It's hard to get a verdict on trip-and-fall cases, and we quite frankly usually [don't] take them," says Sauro.

Sauro says they decided to take Chamberlain's case because they felt the store's actions were particularly egregious. The store easily could have prevented the accident.

The door stopper had been broken for a while, Hyman says. "Instead of fixing it, they used a cement block," he says. "They could have fixed it for $3.25."

Plaintiff's attorneys: Brenda Sauro and Jeff Hyman, Haligman & Lottner, Denver, Colo.

Defendant's attorney: Scott J. Eldredge and Peter W. Burg, Burg Simpson Eldredge & Hersh, Englewood, Colo.

The case: Arapahoe County District Court, Colorado, Lola Chamberlain v. Wal-Mart Stores Inc.; Case no. 95-CV-1465; Judge Deanna E. Hickman.

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