Morrison Mahoney Partners Peter Monaco and Phil Hirshberg recently obtained a defense verdict in a trip and fall case after a 5-day trial in Essex (Lawrence) Superior Court.
Plaintiff alleged that she tripped and fell, breaking her foot (5th metatarsal), as a result of an alleged pothole and inadequate lighting in a commercial parking lot. Plaintiff’s expert architect testified that the parking lot condition was a hazardous defect.
Plaintiff had ORIF surgery with screw implantation, which was removed several years later due to irritation. She had previously claimed exacerbation of her PTSD (originally stemming from her military service) and prior neck problems but waived those additional claims at trial. Nonetheless, she claimed emotional damages, as well as significant physical limitations, pain and suffering, and permanent disability as a result of the foot fracture. Her expert orthopedist opined that she may have permanent nerve damage, but most of his opinions in that regard were not admitted after Motions in Limine. A competing orthopedic expert for the defense opined helpfully in noting her multiple prior, concurrent, and subsequent medical conditions, including plantar fasciitis and Achilles tendonitis in the same fractured foot.
Defendant property manager testified on direct examination regarding the safe and reasonable condition of the property and efforts to maintain it. The defense effectively cross-examined the plaintiff liability expert, who reviewed only three photographs and Googled the property, and never visited the site. Plaintiff’s credibility was greatly damaged on cross by counsel pointing out numerous inconsistencies in her prior testimony regarding the lighting (which photographs showed was operable), timing of the photographs (where she contradicted her own prior testimony and her own daughter’s testimony), and her medical limitations. Discovery and investigation had identified numerous social media videos of the plaintiff working out vigorously, which plaintiff counsel attempted to defuse by playing first for the jury on direct examination, but which were hugely damaging to her credibility and claims for permanent injury.
The jury was out for approximately 1 hour over two days before returning a defense verdict.
