The Legal Chutes and Ladders of a ‘Slip and Fall’
So-called “slip and fall” cases are among the most ubiquitous and contentious actions filed in America’s civil courts. This is the story of one of them:
Orchard Supply Hardware solved its “dilemma” in this slip and fall by deciding to forgo appeals and immediately pay a $109,000 judgment to Mary Ames of Pasadena, plus costs and interest, for a total of $119,510.
Ames, now 85, fell just inside the entrance to Orchard’s Pasadena store--one of 30 the firm operates in the metropolitan area--on July 24, 1997, fracturing her right shoulder and arm and tearing a rotator cuff.
Stipulated medical expenses and therapy came to $19,364, and Ames has not recovered fully from her injuries. Her pain and suffering have been considerable, and her lifestyle has been severely affected.
Ames’ attorney, Mark D. Wenzel of Los Angeles, who fought with, in his own word, “rude” vigor for her, will take one-third of the judgment as his fee. So his law firm, Stone, Dolginer & Wenzel, will get $36,973, plus $8,590 in costs.
This adds up to $73,947 to Ames and $45,563 to Wenzel’s firm.
Certain to be well compensated for its work is the company’s legal representative, the L.A. law firm of Manning, Marder & Wolfe. Its partners say the decision by Orchard not to appeal broke the firm’s string of defense victories in personal injury cases at 29.
It is unusual that any company, even one that is self-insured like Orchard, decides to forgo an appeal, and agrees to pay the full amount without seeking to negotiate a lesser sum for providing the money so quickly.
But Orchard’s chief financial officer, Michael J. Bauman, explained the decision to me in a letter:
“We are extremely regretful that our internal systems in this instance failed to ensure that everyone who comes into contact with our company and its representatives is treated with understanding, compassion and fairness.”
In interviews, Bauman added that Orchard’s in-house counsel had decided there weren’t promising grounds for an appeal.
“We have very few of these cases, but the average age of those who do make claims is high, and they present a terrible dilemma for businesses,” he declared.
Just how many slips and falls are there? Statistics on lawsuits are hard to come by, although Bob Hartwig of the Insurance Information Institute told me that government studies show nearly 3 million falls of all types in the nation each year. An average of 14,000 falls are fatal; 4,000 of those occur at ground level.
So this is no laughing matter, and in Ames’ case it led to a legal brawl.
Although Wenzel told me that Ames had been injured when “she tripped over a rubber and carpet floor mat that was wrinkled and was located just inches inside the sliding front doors,” Ames herself, in a deposition, expressed uncertainty on what caused her to fall.
Asked by defense attorney Anthony J. Ellrod what happened, Ames declared:
“Well, the doors automatically opened, and I walked through. And I assume I caught my toe. I was on the floor before I knew what was going on.”
In his motion for a summary judgment, Ellrod declared, “A fall, by itself, is not enough to demonstrate negligence.”
But Superior Court Judge Jan A. Pluim refused to abort the trial, saying there were triable issues: (1) What caused Ames to fall? (2) Did the rubber mat become wrinkled with normal pedestrian traffic? (3) Were there prior incidents of customers tripping that should have put Orchard on guard?
Orchard employees testified that they occasionally readjusted the mat to correct wrinkles or movements, and Ames testified she noticed it was wrinkled after she fell.
On March 9, the jury found 9 to 3 for Ames. Had a fourth juror ruled against her, there would have been a mistrial.
Ellrod soon gave notice to Wenzel that Orchard wanted to appeal, and all hell broke loose.
Manning, Marder & Wolfe has a reputation for combativeness. The defense firm has two small sharks in an aquarium at the entrance of its offices, and there are pictures of some of its lawyers in karate garb and on a motorcycle jaunt through Baja California.
But Steven D. Manning calls such decorative features “a self-effacing joke” about the characteristics of lawyers rather than symbols of the firm’s aggressiveness.
On April 15, Wenzel wrote Ellrod that he thought this was no case for appeal, that the verdict was reasonable and Ames “a nice, believable old lady with a very bad injury.”
At about this time Wenzel also warned Ellrod that if the appeal wasn’t dropped, he would try to enlist the press on Ames’ side.
Ellrod responded April 21, saying, “I sympathize with your strong personal feelings about this case. Nevertheless, I strongly disagree . . . that there are no significant appellate issues or that this is a case of clear liability.”
But, already, on April 19, Wenzel had written me a lengthy letter outlining the case, saying the factual issues had been decided, there were no real issues of law and an appeal might drag on beyond Ames’ death. He also quoted Ellrod as saying that “Orchard wants to send a message to plaintiff’s attorneys about what they will be in for when they sue Orchard.”
Ellrod denies he said that.
On May 19 I wrote Orchard CEO Jerry Post, telling him of plans to write a column on the case and asking for a response to Wenzel’s points.
John A. Marder at the defense firm told me that evening he was fearful that, to avoid bad publicity, Orchard would give up the appeal.
My letter had been faxed at 3 p.m. on the 19th. At 5 p.m. on May 20, Wenzel was notified Orchard was giving in.
Bauman told me later he “assumed” my letter announcing plans for a column was not instrumental in the company’s decision.
“What you probably did was to accelerate the time frame in which the decision was made, but probably little more than that,” he said. “If we felt there were issues of law that gave us a chance on appeal, then we would have gone ahead.”
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Ken Reich can be contacted with your accounts of true consumer adventure at (213) 237-7060 or by e-mail at: ken.reich@latimes.com
