Trachtman & Trachtman, LLP Obtains Defense Verdict for U.S. Bank

Facts: On November 7, 2016, Plaintiff, a then 56-year-old registered nurse for a hospital maternity ward, visited a U.S. Bank branch to obtain a wire transfer. In order to effectuate the wire transfer, a U.S. Bank Manager invited Plaintiff into a private office. The office had a normal configuration consisting of a standard-sized desk and guest chairs for bank clients, such as Plaintiff, to sit in while the Manager completed the transaction.

Plaintiff walked into the Manager’s office and immediately, with ease, sat down in front of the Manager’s desk in one of the guest chairs. Plaintiff sat in the same chair for approximately 13 minutes while the U.S. Bank Manager completed the wire transfer. Following the transaction, Plaintiff stood-up and took a step to her left in order to step away from the guest chairs in order to exit the Manager’s office. While Plaintiff was taking her first step away from the guest chair, the Manager extended his hand to thank Plaintiff for the transaction and to say goodbye.

While reaching for the Manager’s hand, Plaintiff tripped and fell to the ground. During the fall, Plaintiff landed on her left hip and ended up sustaining a fracture of her left hip which necessitated surgery.

Plaintiff sued U.S. Bank on the grounds that the desk and guest chairs configuration constituted a dangerous condition which provided her insufficient room to safely exit the desk/guest chair configuration. U.S. Bank denied that the subject configuration constituted a dangerous condition; rather, the accident was caused solely through Plaintiff’s negligence in stepping/walking away from her chair.

Between November 5, 2019 and November 12, 2019, this matter was tried before a San Bernardino jury with Hon. Judge John N. Pacheco presiding. Christopher Gaddini, Esq. from the Downtown LA Law Group, LLP, tried the case for Plaintiff, Ana Cornejo.

Plaintiff’s liability theory: Plaintiff claimed that the space between the guest chairs and the front of the Manager’s desk was too tight to allow her to safely exit said space. Plaintiff’s main liability contention was that U.S. Bank was negligent per se because the space between the desk and guest chair violated the 1964 Uniform Building Code. Specifically, Plaintiff retained Philip Rosescu (Wexco Engineering) who testified that the space between the desk and the chair constituted an “aisle” under Section 3313(b) of the 1964 Uniform Building Code. Under that Code section, an aisle required 36 inches of space for safe ingress and egress. The space between the chair and the desk was 19 inches and therefore, violated the 1964 Uniform Building Code.

Plaintiff and Mr. Rosescu also took the untenable position that U.S. Bank’s Manager also negligently caused Plaintiff to fall because he went to shake her hand and his gesture of courtesy caused Plaintiff to lose her attention span and trip over the leg of the Manager’s desk (which protruded several inches out from the front panel of the desk).

In order to debunk Mr. Rosescu’s “aisle” Uniform Building Code violation theory, we hired Wes Harrington, a very seasoned contracting expert. Mr. Harrington opined that Mr. Rosescu tortured and misinterpreted the 1964 Uniform Building Code by claiming that the subject space was an “aisle”; rather, neither in the 1964 Uniform Building Code or via any subsequent revisions to the Code would the subject space ever constitute an aisle. Rather, the subject space between the guest chairs and the Manager’s desk was properly defined, by the Code, as an “access aisleway” which feeds into an aisle. As an example, if you sit in a row of seats at a sporting event or in a theater, the space between your seat and the seat in front of you is an access aisleway which feeds into an aisle that audience members or fans enter and exit from said access aisleways.

Later Uniform Building Code revisions (1997 and later), explained more thoroughly what an access aisleway is and further stated that there only needs to be 12 inches of space between the chair and the desk. Here, by Mr. Rosescu’s own measurements, there was 19 inches of space between Plaintiff’s chair and the desk. In addition to the foregoing, Mr. Harrington also established, via research of Building Department records, that the office had been modified a couple of times between 1964 and the date of the incident. In fact, as a result of his research, Mr. Harrington testified that the 1964 Code could not have been applicable and the applicable Code was the 1997 Code.

In addition to debunking the Code violation and “hand shake” negligence theories proffered by Plaintiff and her expert, Defendant established, through Plaintiff’s own testimony, that she could not meet her burden of proof that she even tripped over the desk itself. Specifically, in her deposition, Plaintiff testified in response to at least 6 different questions that she had no idea what caused her to fall and it was possible that she simply tripped over her own feet after she got up to leave. She also made similar statements to emergency personnel who came to the scene to treat her. The paramedic testified at trial that she asked Plaintiff, immediately after the incident, what happened. In response, Plaintiff stated/admitted, “Her sandal got caught on the carpet and then she fell to the ground.” Plaintiff made no mention of the desk or a tight space. It was only at trial, for the first time in three years since the incident occurred, that Plaintiff testified that she had tripped over the allegedly dangerous desk.

Damages: It was undisputed that Plaintiff fractured her left hip in the incident. Plaintiff underwent open reduction internal fixation surgery to repair the fracture. The main dispute regarding injuries was whether Plaintiff fully healed from surgery or whether she would need a second surgery to remove her hardware because she was allegedly experiencing pain in 2019. Prior to Plaintiff’s alleged renewed pain symptoms, Plaintiff had no treatment since June, 2017, which was approximately seven (7) months post-surgery.

In support of her damages claim/need for future surgery, Plaintiff called her attorney-referred pain management physician, Don Mills, M.D., who testified that Plaintiff suffered from chronic pain and it was obvious that the hardware from her hip surgery was causing said pain.

In response, U.S. Bank retained Anthony Fenison, M.D., an orthopedic surgeon who specializes in hip surgeries. Dr. Fenison testified that Plaintiff’s hip surgery was performed in a “textbook” fashion by her treating surgeon. Plaintiff had an excellent recovery, there was absolutely no need for any of the hardware to be removed, and that Plaintiff’s medical history showed that she was symptom-free, for months, prior to being discharged seven (7) months post-surgery. There were no objective clinical signs for why Plaintiff was again complaining of pain twenty (20) months later in 2019.

In terms of special damages, Plaintiff originally had $84,300 in billed medical specials. U.S. Bank retained Nancy Michalski, R.N., to perform a billing analysis and she came up with a reasonable value of $37,311.69. At trial, Plaintiff stipulated to Ms. Michalski’s $37,311.69 figure.

In closing argument, Plaintiff’s Attorney asked the jury to award Plaintiff $575,000 consisting of $37,500 for past medical specials; $37,500 in future medical specials (hardware removal and ancillary care); $250,000 in past pain and suffering; and $250,000 in future pain and suffering. Ben Trachtman asked the jury for a defense verdict.

After one hour of jury deliberations, the jury informed Judge Pacheco that they were “hopelessly deadlocked” on Question No. 1: “Was the Defendant U.S. Bank negligent?” At that time, there were eight (8) jurors strongly desiring to answer “No” and four (4) jurors who wanted to find liability. Judge Pacheco asked the jury to deliberate further. After a short amount of further deliberations, the jury came back and stated that they were deadlocked and wanted to stop deliberating. Judge Pacheco declared a mistrial.

Outcome: Subsequent to the mistrial, the parties agreed to refer the matter to Judge Pacheco for him to render a verdict on both liability and damages. On March 16, 2020, Judge Pacheco rendered a defense verdict.

Judge Pacheco specifically found:

  • Plaintiff did not present sufficient evidence to establish that the fall was caused by her tripping on the desk;
  • Plaintiff failed to meet her burden of proof that the furniture in the U.S. Bank Manager’s office, specifically the placement of the desk and chair, constituted an unreasonable risk of harm;
  • Plaintiff’s Code violation arguments were unavailing and insufficient to meet her burden of proof. The 1964 Uniform Building Code was inapplicable due to subsequent construction modifications made to the subject office space in the 1990’s. Further and significantly, the Court rejected Plaintiff’s characterization of the subject space as an “aisle” – even as of 1964. Rather, the condition constituted an “aisle access way.” The space between the desk and the chair exceeded the applicable Code-required distance of twelve (12) inches (it was 19 inches); and based on the evidence presented during the Trial, Plaintiff’s fall was caused by her sole negligence and through no negligence of the Defendant.