Goldberg Segalla’s defense of a national retailer in a lawsuit brought against the company by a man injured in a motor-vehicle accident ended in a jury award significantly less than anticipated, likely saving the business tens of millions of dollars.
The heavily litigated Orange County, Florida case — which dragged out over four years — stemmed from an accident in which a car driven by a co-defendant T-boned a motorcycle driven by the plaintiff.
Because the driver of the car had limited bodily-injury insurance coverage, the business was also sued under a somewhat remote legal theory known as “Foreseeable Zone of Risk.” The theory provides that a party may be liable for conduct occurring on its property that creates a foreseeable zone of risk to others and, therefore, gives rise to a legal duty.
The co-defendant driver, a regular customer of the retailer, attempted to turn left into the store from the public roadway, something she had routinely done each month over the past five years — close to 60 times. The maneuver required her to cross through, and over, a “cross-hatch yellow gore” painted flush to the roadway that separated the north and southbound travel lanes, in order to enter the store’s driveway. In the process of doing this, she caused a collision with the plaintiff who was travelling in the opposite direction on his motorcycle.
The plaintiff suffered serious and permanent injuries in the crash, including a traumatic brain injury despite wearing a helmet. He also suffered multiple face fractures, and a broken arm and pelvis. He is now unable to work, walks with a cane due to an antalgic limp as a result of the brain injury, and has trouble retaining memory/staying focused.
Gavin Mackinnon and Gregory Jordan — a partner and attorney in Goldberg Segalla’s Retail and Hospitality, and Transportation practice groups, respectively — defended the case. As a result of several pre-trial motions they secured, the plaintiff was forced to change his theories pertaining to liability. He ultimately claimed the left turn into the store was simply dangerous given the roadway conditions, which included a slight curvature that created line-of-sight issues in instances of sufficient vehicle congestion caused by cars waiting in line at a traffic light to turn at the intersection. Thus, his claim was the store’s small “Enter” sign induced a dangerous turn.
The trial lasted nine days and the plaintiff asked the jury to consider awarding him $30 million if they felt he had the potential to recover; $60 million if they thought he would remain in his current condition, or $90 million if they thought he would experience a consistent decline, as his doctors testified he would.
The issue presented to the jury was whether the business’s “Enter” sign was a legal cause of loss, injury or damage to the plaintiff. The jury found that it was not, thereby resulting in a defense verdict for the retailer.
Meanwhile, counsel for the co-defendant argued the plaintiff was 100 percent reliable for his own injuries for not avoiding the accident, arguing he had every opportunity to do so. The jury, however, was only slightly persuaded. It found the co-defendant 65-percent liable — with 10 percent falling on the plaintiff and 25 percent the fault of the county. But given the county was an “empty chair,” there could be no recovery against it since Florida is a pure comparative state and does not allow joint, and several, liability.
Despite the plaintiff’s high verdict request, the jury issued a total verdict of $3.6 million, of which $77,000 was awarded for past pain, suffering, and disability, and $923,000 for future suffering.
Prepared for a significantly larger jury award, the retailer was thrilled with the defense waged by Gavin and Greg. The two attorneys, meanwhile, also credited paralegal Shahira Castellano and legal assistant Gaby Rivera, who worked tirelessly throughout the case to help ensure Gavin and Greg were prepared every step of the way throughout the hard fought litigation.