COURT
Superior Court of San Diego, El Cajon, CA

JUDGE
Lillian Y. Lim

DATE
6/14/2004

PLAINTIFF ATTORNEY(S)
Thomas D. Penfield, Casey, Gerry, Reed & Schenk, San Diego, CA
Bonnie E. Kane, The Kane Law Firm, San Diego, CA

DEFENSE ATTORNEY(S)
Robert A. Cook, Bradley & Gmelich, Glendale, CA (Merchants Building Maintenance Co., Parkway Plaza)
Carolyn P. Gallinghouse, Boyle & Jansen, San Diego, CA (Sandra Camarillo, 5M & Associates, Mame Inc., Marisan Management Inc.)

FACTS & ALLEGATIONS
On August 9, 2001, plaintiff Margaret Wahlen, 48, a voice instructor and recording artist, was walking down the hallway in the common area of the Parkway Plaza shopping center in El Cajon.  As she passed by a McDonald's restaurant in the mall, she slipped and fell on some water on the terrazzo floor.

Wahlen sued the owner of Parkway Plaza, Parkway Plaza LLC; the company that provided maintenance for the mall, Merchants Building Maintenance Co., Monterey Park; Sandra Camarillo operating as McDonald's, and three of Camarillo's companies, Marisan Management Inc., 5M & Associates, and Mame Inc., alleging premises liability and negligence.  Parkway Plaza and Merchants filed a cross-complaint against the McDonald's entities.  The McDonald's entities filed a cross-complaint against Parkway Plaza and Merchants, seeking indemnity.

Wahlen contended that McDonald's created a spill while mopping in the public area of its restaurant.  The spill then flowed out onto the terrazzo floor in the common area of the mall, where it was virtually impossible to see.

Wahlen asserted that Parkway Plaza knew that there would be spills onto the terrazzo floor and that terrazzo was extremely dangerous when wet, yet did nothing to make the surface more slip-resistant.  Finally, Wahlen alleged that Parkway Plaza changed the character of the mall by introducing food courts and restaurants, which lead to the increased risk of harm from spills.  Wahlen also argued that Merchants failed to identify and clean the common area prior to her fall.

McDonald's contended that it never took the mop bucket out to the public area and did not create the spill.  McDonald's argued that if it did create a spill, the water could not have flowed out to the mall because it was uphill.

Parkway Plaza contended that terrazzo was commonly used in many public places, including malls; that it met the standards of the industry with regards to slip resistance; and that there had been no prior instances of a person slipping in the same area of the mall.  They argued that the patrol "sweeps" of the mall were sufficient to provide for prompt discovery of spills.  They asserted that McDonald's created the spill and, consequently, was obligated to indemnify and defend them from Wahlen's complaint.  (McDonald's disputed this contention, arguing that the spill could not have come from it's restaurant.)

INJURIES/DAMAGES
knee; shoulder

Wahlen claimed that she suffered trauma to her right knee and right shoulder while trying to keep her head from hitting the ground.  She underwent four surgeries, including a decompression surgery to her shoulder; a lateral release to her knee; a Fulkerson osteotomy to her knee; and a subsequent surgery to remove the screws.  She also had 123 physical therapy sessions.  Wahlen claimed damages for medical expenses, as well as pain and suffering.

The defendants contended that Wahlen had a preexisting misaligned patella; therefore, there was no causation.  The defense asserted that in 1994 and 1995, Wahlen was in multiple motor vehicle accidents with many resulting medical problems, including prior right shoulder surgery.  Had Wahlen's surgeon looked at her prior medical history, he would have realized that decompression surgery would have no benefit.  The defense maintained that Wahlen had a history of fibromyalgia, and that the Fulkerson osteotomy was developmental in nature, so it could not have been necessitated by the fall.

RESULT
Prior to trial, McDonald's, Parkway Plaza and Merchants Building Maintenance bifurcated their cross-complaints from Wahlen's complaint.  They agreed to provide special questions to the jury adjudicating Wahlen's claims to determine if the spill had emanated from McDonald's.

After finding McDonald's 51% negligent and Parkway Plaza Corp. 49% negligent, the jury awarded Wahlen $61,000 in economic damages and $200,000 in noneconomic damages, creating a total verdict of $261,000.  Merchants Building Maintenance received a defense verdict.

Counsel for Parkway Plaza and Merchants reported that the bifurcated portion of the litigation regarding their claims for indemnification and defense is pending.

DEMAND
$425,000

OFFER
None

TRIAL DETAILS
Trial Length:  7 days
Jury Deliberations:  3 days
Jury Poll:  10-2

PLAINTIFF EXPERT(S)
Carl A. Beels, M.S., ergonomics/human factors, Escondido, CA
Peter B. Wile, M.D., orthopedic surgery, San Diego, CA (treating physician)

DEFENSE EXPERT(S)
Alex J. Balian, MBA, safety, West Hills, CA (maintenance)
Roger W. Simmons, PhD, tile surfaces, San Diego, CA (terrazzo)
Ken Bonatus, safety, San Diego, CA
Robert A. Pedowitz, M.D., orthopedic surgery, La Jolla, CA

EDITOR'S NOTE
Counsel for McDonald's entities did not respond to a draft of this report or a phone call.

-Randy Stewart-