Gonzales v. Vasquez

$350,000 Verdict

Date of Verdict: Oct. 23.

Court and Case No.: C.P. Philadelphia No. 170803103.

Judge: Ann M. Butchart.

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

Injuries: Wrist fracture.

Plaintiffs Counsel: Justin K. Youkey, Spear, Greenfield, Richman & Weitz.

Plaintiffs Expert: Todd M. Kelman, hand surgery, Philadelphia.

Defense Counsel: Colin E. Brett, Law Offices of Kenneth S. O'Neill, Philadelphia.

Comment:

On June 20, 2016, plaintiff Carmen Gonzales, 65, was walking on the sidewalk at 226 Robat St., in North Philadelphia, when she tripped and fell. She suffered a wrist fracture and claimed other injuries.

Gonzales sued property-owner Domingo Vasquez, alleging that he was negligent in failing to maintain the sidewalk. Gonzales also sued the city of Philadelphia, which was initially believed to be the property owner. The city was dismissed, prior to trial.

Gonzales alleged that there was a six-inch space between the sidewalk's concrete slabs where her foot got caught, causing her to trip and fall. Gonzales' counsel presented photographs of the alleged defective condition.

Gonzales' counsel cited Vasquez's testimony in which he stated that he had known about the sidewalk's condition since 2000, and conceded that it was dangerous. In his deposition, he testified that he attempted to remediate the sidewalk after Gonzales' accident. At trial, Vasquez testified that, on multiple occasions prior to the accident, he had used sand to fill the gap in the sidewalk. Gonzales' counsel argued that Vasquez had not disclosed this in his deposition, and that had he used the sand as he alleged, it was an insufficient method since sand would easily wash away in rainy and wintry conditions.

The defense maintained that Gonzales was comparatively negligent for the accident, because she admitted that she had walked over the sidewalk four times a day for years, prior to the accident. Gonzales, who lived in the neighborhood, also admitted that she was aware of the sidewalk's condition. According to Gonzales, at the time of the accident, she was walking with her adult son, who is special needs, and she became distracted because she was concerned he was going to walk into the street.

The defense asserted that the condition was open and obvious, and that any negligence by Vasquez was less than Gonzales' negligence.

Following the accident, Gonzales walked home and called emergency personnel to have an ambulance transport her to an emergency room. She was X-rayed and diagnosed with a right intra-articular fracture of the right distal radius and a right ulnar styloid fracture, of her dominant arm. Traction was attempted twice to straighten the fracture in order to avoid surgery, but it was unsuccessful. She was placed in a soft cast and discharged.

In the ensuing days, Gonzales came under the care of an orthopedic surgeon. On July 1, she underwent an open reduction and internal fixation in which a plate and three screws were implanted in her wrist. Following the surgery, she followed up with her surgeon and treated with eight sessions of physical therapy. She was discharged pain-free.

However, in late 2016, Gonzales allegedly began experiencing pain and limited range of motion in her right wrist. She was determined to have de Quervain's tenosynovitis and carpal tunnel syndrome. In early 2017, she consulted with her surgeon, and in April she underwent a de Quervain's release procedure, in which a one-centimeter incision was made along her right wrist. She treated with another session of physical therapy, and no further treatment was rendered. She sought to recover a Department of Public Welfare lien of $14,207.53. The court granted Gonzales's counsel's motion to have the court mold the lien to a verdict in favor of plaintiff.

Gonzales' expert in hand surgery causally related her injuries and treatment to the accident. The expert determined that she has a marked decrease in grip strength and a limited range of motion in her right wrist. The expert concluded that she is a candidate for a carpal tunnel surgery and that her injury is permanent.

Gonzales testified that her ongoing wrist pain, limited range of motion and diminished grip strength impair her household duties, especially cooking and cleaning, and caring for her children and grandchildren. She has been forced to favor using her left arm. She sought damages for past and future pain and suffering.

The defense, which did not retain a medical expert, conceded Gonzales' wrist fractures, but disputed the causal relation of her de Quervain's tenosynovitis and carpal tunnel syndrome. The defense maintained that the conditions were primarily the result of her 20-plus years working in a factory, and not due to the accident.

The jury found Gonzales 40 percent liable and Vasquez 60 percent liable. Gonzales was determined to receive $350,000, which was accordingly reduced to $210,000. Pursuant to the court's ruling, Gonzales' Department of Public Welfare lien of $14,207.53 was added, and the verdict was molded for a total amount of $224,207.53.

—This report first appeared in VerdictSearch, an ALM publication.