Slip on Cold Cut Sends Tremors Through Public Agencies : Courts: Justices to decide suit, stemming from an accident caused by lunch meat in Poway school district, that tests limits of liability.

Francis (Pete) Brown was delivering one last computer when he slipped on a piece of lunch meat that came out of nowhere.

His livelihood and his life shattered in the instant his head struck the floor. With gaps in his memory and no way to support his family, Brown sued, accusing the Poway Unified School District of negligence.

As the case heads to the state Supreme Court, that fall on a cold cut is sending tremors through public agencies in the state, which have rallied to the school district’s defense. The school district says it isn’t responsible for the accident.

The case began April 4, 1988, when Brown arrived at the school district’s offices to deliver computers he had repaired.

He backed his old Chevy van up to the maintenance room door and hauled the machines through a narrow hallway cluttered with heavy pipes.

When the work was done, Brown realized he had delivered one extra computer. He walked back into the building to retrieve it. He hefted it up, took a few steps, then skidded and fell backward.

A maintenance clerk and a man who was sharpening some saw blades heard the crash and came running. They tried to help Brown to his feet, but one foot skidded again and again.

Then they saw the lunch meat, stuck fast to the sole of Brown’s boot. No lettuce, no mayonnaise, no mustard, no bread, legal documents say--just a fresh, pink slice of lunch meat.

“It was unexplainable, really. I had walked the same path minutes before,” said Phyllis Hards, the maintenance clerk, who picked up two other slices from the floor. “Another gentleman was with me and he didn’t see anything. I didn’t see anything, and I was looking at the floor. I was totally aware of the floor.”

Then the mystery thickened.

In depositions, witnesses testified that only five people, including the victim, were in the building that Monday morning. Under oath, all denied ownership of the lunch meat. Head custodian Ernest Lemire swore he had cleaned the floor Friday night and saw no meat. District employees say the doors were locked over the weekend.

And it was nowhere near lunchtime.

“I thought about it a lot afterward. The mystery and the tragedy, but more the mystery, really,” Hards said. “I don’t know how on earth it got there.”

Legal experts have spent years on the puzzle and gotten nowhere.

“Any explanation is unlikely. Without being inside a sandwich, lunch meat is not often seen anywhere outside a refrigerator,” wrote Susan Mason, an attorney for Stutz, Gallagher & Artiano, the San Diego law firm defending the Poway schools. “The source of this meat is truly mysterious.”

That October, Brown sued the school district, maintaining that negligent maintenance of the floor led to his brain damage and destroyed his livelihood. He is seeking $3 million in damages.

When Pete Brown’s head hit the floor, his memories were erased, his coordination damaged and his self-sufficiency destroyed.

Recently, he and his wife visited the church in Maryland where they were married 30 years ago. He says nothing looked familiar. Not even the faces of relatives he has known for years.

On the advice of a doctor, he listens to old music, hoping it will cast light into the black holes where his memory used to be.

“I leave it to the family to fill me in,” he said.

Once the family’s sole bread winner with a successful computer repair business, Brown, 49, now struggles to walk and speaks with a stammer that worsens when he gets upset.

He had no medical insurance and now hates to go to the doctor because he can’t pay.

“I took care of my family all my life. I never needed assistance,” said Brown, his speech halting and his brown eyes full of tears. “I’m not the smartest, but I took care of my family. Now I feel I’ve let them down.”

After the accident, Brown fought to keep his business from collapsing.

He kept trying to fix computers, but burned up five or six before admitting to himself that he couldn’t do it anymore.

Angry computer owners sued him for his mistakes.

Marge Brown, his wife, can hardly remember how it used be. The two stay at their Poway home now and try to block out the accident. Still, it affects everything they do.

Their Chevy van sits in the driveway, unregistered. They borrow a car from a friend. Marge Brown says she is always looking down “and pushing things aside so no one else will slip.”

With Brown’s business wiped out, and astronomical medical bills hovering, the couple can’t afford much of anything. He wants an electric cart, because his gait is irregular and painful, but can’t afford it. Brown can only wait for his lawsuit to be resolved.

“I feel I don’t have a life. That’s what runs my life,” Brown said, pointing to his lawyers and the law volumes lining the shelves of their office. “I might be slow but I’m not as slow as the legal system.”

In October, 1989, Brown’s lawsuit was dismissed in a summary judgment one month before its trial date. The school district’s attorneys persuaded a judge that under the California Penal Code, public entities are liable for injuries only if they receive “notice” before an accident that a dangerous condition exists or if an employee created the condition.

But Brown’s lawyers successfully appealed, invoking a century-old legal doctrine known as res ipsa loquitur, literally, “the thing that speaks for itself.”

In other words, argued Brown’s attorneys, the fact that the accident happened at all is proof that a school district employee was negligent.

Just look at the facts, they urged. The doors were kept locked and only employees had keys to the building. An employee picnic area was nearby. The building has a lounge with a refrigerator.

“The key question is whether it is more probable than not from the facts that (the school district) or its employees were . . . responsible for the dangerous condition,” James Miller, one of Brown’s lawyers, wrote in his appeal. “Given the fact that the hallway was locked, that the only two non-employees present in the hallway prior to the accident have been eliminated as (lunch meat) sources, that lunch meat does not walk, crawl or fly by itself, and that it appeared fresh, only one of (the district’s) employees could have left it in the hallway.”

If the state Supreme Court allows res ipsa loquitur to apply, the burden of proof shifts. The school district will have to prove to a jury that it was not negligent, instead of Brown having to prove that it was.

The district’s attorneys, meanwhile, say there are plenty of other ways for lunch meat to get around. What about animals or a strong wind? What if the cold cuts were somehow stuck to the bottom of Brown’s computer? Or he tracked them in from outside?

“There is utterly no evidence that the lunch meat in question came from the school district or that it was anywhere, except stuck to the plaintiff’s shoe,” the school district’s lawyers argued.

The notion that circumstantial evidence, not absolute proof, of an employee’s negligence could warrant a jury trial irks public agencies and other organizations, whose lawyers are flying to the aid of the Poway district in droves.

They envision drawn-out, costly battles to quash large numbers of groundless accident lawsuits. The case might even force innocent public agencies to pay off plaintiffs to avoid legal costs, the school district’s supporters say.

“A number of people might like to slip and fall in front of a deep pocket,” said Fred Hiestand, attorney for the Assn. for California Tort Reform. “In this case, you wouldn’t have to show a lot of evidence.”

But the plaintiffs say that’s ridiculous.

“This doesn’t change any law as far as I can see,” Miller said. “It’s a question of drawing reasonable inferences from known facts.”

Doug Stoodt, another of Brown’s attorneys, said at least 50 agencies, including the city of San Diego, the League of California Cities and the Assn. for California Tort Reform, have filed briefs with the state Supreme Court in support of the school district.

Res ipsa loquitur doctrine is the target of their attacks.

The doctrine was born in England in 1863, after a flour barrel flew from a warehouse window and landed on a passerby. Although nobody owned up to hurling the barrel, the accident itself was deemed proof of an employee’s negligence.

Since then, experts say, the rule has been invoked frequently in medical malpractice lawsuits. It was applied, for example, in Ales vs. Ryan, a 1936 case in which a doctor sewed up a sponge in a patient’s abdomen, and in Ybarra vs. Spangard, a 1944 case in which an unconscious plaintiff suffered a trauma to a part of his body not involved in the surgery.

Later, the rule was applied to transportation accidents. Despite many attempts, however, it has never been successfully applied to a “foreign substance slip-and-fall” case, both sides acknowledge.

Mark Grady, professor at Northwestern University School of Law, expects the court to rule in Brown’s favor. He found the case so intriguing that he used it on an exam last semester, calling it “The Case of the Lingering Lunchables.”

“ Res ipsa loquitur is about probability,” Grady said. “The probability was that some employee left” the cold cuts on the floor.

“It stands for the creation of evidence out of thin air,” Hiestand wrote in documents to the state Supreme Court, which is expected to hear the case in the fall. “It stands for getting just about every slip-and-fall case to the jury regardless of how weak or nonexistent the evidence is.”

Hiestand bolsters his argument with quotes from the Roman statesman Cicero, Oliver Wendell Holmes and former Supreme Court Justice Felix Frankfurter. He uses the playwright Pirandello to describe the plaintiff’s legal team:

“Madmen, lucky folk!--construct without logic, or rather with a logic that flies like a feather.”

Stoodt shoots back with Shakespeare, sending excerpts from Macbeth to the Supreme Court:

“It is a tale told by an idiot, full of sound and fury, signifying nothing.”