Powell v. Giant Eagle

$304,000 Verdict

Date of Verdict: Jan. 25.

Court and Case No.: C.P. Allegheny County No. GD-15-012733.

Judge: Alan D. Hertzberg.

Type of Action: Premises liability, slip-and-fall.

Injuries: Hamstring, left shoulder injuries.

Plaintiffs Counsel: Brendan B. Lupetin, Meyers Evans Lupetin & Unatin, Pittsburgh.

Plaintiffs Experts: James Bradley, orthopedic surgery; Pittsburgh; Andrew Rentschler, biomechanical, Pittsburgh.

Defense Counsel: Thomas E. Zumpella, Thomas, Thomas & Hafer, Pittsburgh; Douglas C. LaSota, Marshall Dennehey Warner Coleman & Goggin, Pittsburgh.

Defense Expert: William Abraham, orthopedic surgery, Pittsburgh.

Comment:

On Jan. 12, 2015, at about 9:30 p.m., plaintiff Mary Powell, 47, parked in a handicapped parking space at a Giant Eagle grocery store, in Pittsburgh. As she exited her car, she slipped and fell on black ice, landing on her left side. She claimed injuries to her hamstrings and left shoulder.

Giant Eagle had contracted with Brickman Facility Solutions for snow- and ice-removal services, and Brickman in turn contracted with Matt's Lawn Services to carry out those services.

Powell sued Giant Eagle and Brickman, alleging that they were negligent in removing snow and ice from the store's parking lot.

Giant Eagle and Brickman brought in Matt's Lawn Services as a third-party defendant. Matt's Lawn Services' insurer was obligated to indemnify Giant Eagle and Brickman.

According to Powell, after exiting her car, she took a step back and with her left hand closed the door. By doing this, she placed weight on her left foot and slightly rotated it, and in doing so her left foot slipped and caused her to fall on her left side.

Powell's expert in biomechanical engineering attributed her fall to her stepping on black ice.

Powell's counsel cited photographs of the parking space taken by Powell to show that there was a pile of snow in front of her car, and at the edge of the pile was melted snow. This indicated that snow had melted, resulting in a water runoff and then refreezing, and ultimately the formation of black ice.

Powell's counsel cited the contract between Giant Eagle and Brickman and the contract between Brickman and Matt's Lawn Services. Both contracts addressed melting and refreezing of snow and it was identified as a dangerous condition.

The contract between Giant Eagle and Brickman required Giant Eagle to perform regular inspections of its premises, Powell's counsel argued.

The owner of Matt's Lawn Services, on cross-examination, when presented with the photographs of the handicapped parking space, admitted that the pile of snow next to Powell's car should not have been there, and that it was part of his responsibility to remove it.

According to Powell's counsel, despite the Giant Eagle manager's claim that he was not aware of any prior ice-related falls, during discovery a Giant Eagle document was produced to show that such a fall had occurred weeks prior to Powell's accident.

Powell's counsel faulted Brickman for failing in its contractual duty to ensure that the Giant Eagle property was free of any dangerous conditions. The contract stated that Brickman was to remove snow and ice from such areas as Giant Eagle's sidewalks, grates, and fire hydrants. However, the contract did not mention handicapped spaces in the parking lot. Powell's counsel faulted Brickman for leaving handicapped spaces out of the contract, especially since handicapped individuals are more susceptible to slips and falls.

The defense counsel faulted Powell for her slip and fall.

According to counsel, Powell was physically compromised because of her hundred-plus orthopedic surgeries, and at the time of the accident, she was recovering from a left-foot fusion surgery.

Counsel pointed to the fact that Powell was wearing tennis shoes at the time. Additionally, despite her physicians telling her to stop smoking, she continued, and her smoking contributed to her poor prognosis.

According to Giant Eagle, its employees were responsible for spreading salt as they became aware of a dangerous condition in the walking areas immediately outside of the storefront. However, treatment of conditions in and around the store parking lot were the responsibility of Matt's Lawn Services. At no time prior to Powell's slip and fall were Giant Eagle employees aware of, or notified of, an icy condition in the spot in which Powell parked, nor did any Giant Eagle employee create any type of unnatural accumulation of snow and ice upon which Powell slipped and fell.

Brickman maintained that Matt's Lawn Services failed in its contractual responsibilities to remove snow and ice from the Giant Eagle parking lot.

Matt's Lawn Services provided records to argue that it had salted the parking lot on three occasions on the day of Powell's fall: at 4:50 a.m., when 1,000 pounds of salt was applied; at 8:10 a.m., when an additional 500 pounds of salt was applied; and at 5:15 p.m., when another 500 pounds of salt was administered, for a total of 2,000 pounds of salt.

Matt's Lawn Services also cited weather records that confirmed, between the time of the final salting and the time of Powell's fall, that no precipitation had occurred, with the exception of trace amounts of snow, at about 8 p.m. Powell did not identify any snow that caused her to fall, only black ice.

Records showed that the temperature was at the freezing level at the time of the company's third salting, at 5:15 p.m., and did not rise above freezing again for the rest of the day. Accordingly, there was no chance that any sort of melting and refreezing could have occurred between the last salt application and Powell's fall, Matt's Lawn Services argued.

The company relied on testimony of Giant Eagle's manager, who testified that, when he went out to the parking lot with Powell after her fall, he saw some of the salt that had been applied by Matt's Lawn Services in and around Powell's parking space. The manager also identified salt in photographs. Matt's Lawn Services maintained that it had fulfilled its contractual duties to salt the Giant Eagle parking lot on the day of Powell's accident.

Matt's Lawn Services, in citing Powell's photographs, disputed that there was a pile of snow in front of her car. The company further argued that, from its last salting, at 5:15 p.m. to 9:30 p.m., the time that Powell fell, Matt's Lawn Services was never notified about an issue with the parking lot or that it needed to re-apply salt.

The next day, Powell, complaining of pain in her left (nondominant) shoulder and in both hamstrings, presented to her orthopedic surgeon. She had MRIs and was diagnosed with tear of the left supraspinatus muscle, which is one of the four muscles that make up the rotator cuff, and tears of both hamstrings.

Powell underwent a course of physical therapy, which included exercise. In March, she had surgical repair of her left hamstring, followed by weeks of being non-weight-bearing. She resumed physical therapy of her hamstrings through July.

Other than periodically seeing her orthopedist for right-hamstring issues, no further treatment was administered to her hamstrings. As to her shoulder, Powell continued physical therapy through 2015 and treated with three cortisone injections. No further treatment was rendered.

Powell's orthopedic surgeon and expert in biomechanical engineering casually related her injuries to the accident. Her physician detailed how the hamstring surgery was a painful procedure that required a long recovery. According to the surgeon, Powell will need future shoulder and right-hamstring surgeries.

Powell recounted the pain and difficulty she experienced following the hamstring surgery. She was placed in a leg brace and was homebound for about eight weeks.

Since the pain she experiences is toward her buttocks, she likened the discomfort to sitting on an acorn. This has forced her to carry a cushion and ice packs whenever she has to leave her house and is forced to sit. As to her shoulder, she has full range of motion, but her sleep is affected due to pain when lying on it, and it is susceptible to fatigue. She sought damages for past and future pain and suffering.

Powell and her husband divorced during litigation, and his claim for loss of consortium was dismissed.

The defense's expert, who examined Powell, acknowledged that she suffered strains in her hamstrings and shoulder. The expert disputed that she would need future surgeries. Her left shoulder had the same functionality as it did pre-accident, the expert noted. Additionally, she had the same strength in her right hamstring as she did in the surgically repaired left hamstring, and Powell has been able to function three years post-accident without the right-hamstring surgery, the expert testified.

The jury found that Giant Eagle was 75 percent liable and Brickman was 25 percent liable. No liability was found against Matt's Lawn Services and Powell. Powell was determined to receive $304,000. Matt's Lawn Services' insurer was obligated to indemnify Giant Eagle and Brickman.

This report is based on information that was provided by counsel for the plaintiff and Matt's Lawn Services. Counsel for Giant Eagle and Brickman Facility Solutions did not respond to calls for comment.

—This report first appeared in VerdictSearch, an ALM publication