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$175,000 for fractured ankle.
As an example of an ankle injury from a slip on an icy
surface, we relate the experience of a client we will call
"Gordon," who suffered a right ankle fracture when he
slipped on an icy walkway at a motor inn located near
Bellingham, Washington.
Gordon's fall required that he have a surgery called an open
reduction and internal fixation of the displaced comminuted
trimalleolar right ankle fracture. He was off work a period
of six months. At his regular hourly rate of $13.00, 40
hours per week (not accounting for overtime), his total wage
loss was $12,480.
Like many cases where a client falls on an icy surface, the
key issue was the relative responsibility of the motor inn
and Gordon himself for the fall, including the motor inn's
claim that Gordon was intoxicated. Since this issue was
contested, we looked at liability from three different
points of view: what we knew happened, what our witnesses
said happened, and what the motor inn's witnesses said
happened.
1. What We Knew Happened:
We carefully gathered meteorological records collected at
the nearby Bellingham International Airport to demonstrate
that temperatures were below freezing and it was snowing on
the evening prior to Gordon's early morning fall.
- For the week ahead of December 16, temperatures ran
mostly in the upper 20s with a small amount of
precipitation.
- On December 14, there were traces of snow, then it
warmed up on the evening of the 14th to the low 40s and
began to rain.
- In the early morning hours of the 15th, the
temperature dropped to the low 30s (33) and turned back
to traces of snow again.
By the morning of the 15th, at approximately 6:00 AM,
there was rain and temperatures of 33, 35, and dropping
back to the upper 20s in the afternoon of the 15th.
- By dark on that day, it dropped to mid and lower 20s
with a trace of snow recorded at about 11:00 PM and
again at about midnight.
- On the morning of the 16th, there was a trace of
snow at 1:00 AM, at 1:53 AM and at 2:53 AM.
- Gordon slipped on an icy walkway (ice covered by a
small covering of snow) just after midnight on December
16.
We then took testimony of the motor inn employees to show
that they failed in their duty to remove the snow. We
established that the motor inn management had assigned the
duty of clearing the walkways to the maintenance person, and
to their van drivers.
We established that the maintenance person went home at 3:30
PM, and couldn't recall whether he had cleared the walkways,
that the van driver who normally had snow clearing duty took
the evening of the 15th off because it was his birthday, and
that none of the other van drivers cleared the walkways. Van
drivers were off after 11 P.M. and there was no one
available to clear walkways from 11 P.M. to 5 A.M. Even
assuming that maintenance cleared the walkways in the
afternoon, the motor inn personnel failed to have someone
available to clear walkways after 3:30 P.M. when the wet
walkways froze and it snowed again.
We therefore knew that on the evening prior to the fall, the
walkways at the motor inn had a thin covering of ice, topped
by a small amount of snow, and that the motor inn failed to
clear their walkways that evening.
2. What Gordon's witnesses said:
Gordon's witnesses were company executives and their wives
who were staying at the motor inn after attending their
Christmas party at a nearby local banquet hall. These
out-of-town executives and their wives were on their best
behavior as they were meeting senior management. Everyone
associated with the Christmas party testified that drinking
was tightly controlled, with each attendee receiving two,
and only two, drink tickets. They uniformly testified that
Gordon was at his first corporate Christmas party, was eager
to impress senior management, and was not at all
intoxicated.
Following the Christmas party, the out-of-town guests
retired to the motor inn, talked together for a bit, and
then Gordon and David walked outside, intending to walk down
the street to a local mini-market. As they walked on the
motor inn's walkway, they were very close to the
ground-floor room of Frank, where Frank and Ken were talking
with the window open. David slipped on the icy walkway and
fell down. They both laughed and then Gordon immediately
slipped and fell too -- but he fractured his ankle! Frank
and Ken both heard David and Gordon talking, heard David
fall, and then heard Gordon fall. So four witnesses were
either at the site or overheard the fall from a nearby room.
Ken's wife, Linda, an accountant for the U.S. Department of
Justice, and David's wife Darleen, a stay at home mother of
two, along with their husbands, all clearly testify that
Gordon was not intoxicated. The paramedic who attended
Gordon at the scene and carried him via ambulance to St.
Joseph Hospital, testified at deposition that if Gordon had
been intoxicated at all, he would have noted it in his
report, as the patient's intoxication is an important fact
for the Emergency Room physician to know. But he noted no
signs of intoxication. The Emergency Room physician who
treated the fracture at St. Joseph Hospital similarly noted
no alcohol involvement.
Our witnesses saw this as pure and simple a slip and fall on
an uncleared icy walkway with a thin covering of snow.
3. What the motor inn's witnesses said:
The key defense witness, the hotel night clerk, testified
that although she did not see the event occur, several of
the above-listed witnesses told her after the event that
Gordon fractured his ankle because he was horsing around,
had climbed onto Ken's back, and was trying to tap on a
second floor window to attract the attention of another
guest, when they both slipped, fell, and Gordon fractured
his ankle. Every witness denied making this statement to the
night clerk. It was an explanation of the fall put forward
by one person, the night clerk, who herself failed to clear
the walkways. She also claimed that Gordon was drinking in
the lobby prior to the fall. Again, half a dozen reputable
witnesses contradicted her story. Her credibility was so
poor that the motor inn subsequently fired her for
misconduct unrelated to this claim.
The basic issue for the jury was: Who do you believe? Faced
with the thorough evidentiary workup, the insurer for the
motor inn chose to pay Gordon $175,000 rather than take the
matter to trial. Gordon was represented by WSTLA Eagle
Member Dean Brett of Bellingham's Brett & Coats. |
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