While most falls do not result in injury, 1 in 5 does cause serious injury, such as broken bones or a traumatic brain injury, according to the Centers for Disease Control and Prevention (CDC).
One of those was the plaintiff in Perry v. Bakewell Hawthorne, who took legal action against the owner of the property and its former tenant, a bank in Los Angeles, after falling on a set of exterior stairs.
Central to his claim was the testimony of expert witnesses who stated the stairway was in disrepair and in violation of both applicable industry standards and Los Angeles building codes. Unfortunately, plaintiff hadn’t participated in the exchange of expert witness information and did not designate any expert witnesses prior to the close of discovery. On this basis, the court granted summary judgment to the defense.
On appeal, the California Court of Appeal, Second Appellate District, Division Two, affirmed.
According to court records, plaintiff suffered his fall in January 2013. Plaintiff alleged defendants were negligent in designing, developing and maintaining the stairway, causing him to fall and suffer injuries. Trial was originally set to start in July 2014.
In May 2014, defendant bank served a demand for exchange of expert witness information. Plaintiff filed an objection on the grounds it was untimely. The two defendants exchanged expert witness information later that month, but plaintiff didn’t participate.
Soon thereafter, defendant property owner moved for summary judgment. The motion alleged plaintiff hadn’t met the burden of proving a dangerous condition existed on the property or if there was one that defendant had knowledge of it. In support of its motion, defense presented evidence the bank conducted regular inspections and no dangerous condition was reported the year before.
It was at this time plaintiff argued the stairway did not meet the county business codes or industry guidelines, and he further submitted declarations of two expert witnesses who testified to this fact.
Defends filed a motion arguing that because plaintiff hadn’t participated in the exchange of expert witness information, he couldn’t rely on the testimony of those two witnesses for the purposes of summary judgment opposition.
Trial court sustained defense objection and granted defense motion for summary judgment, finding plaintiff hadn’t offered admissible evidence to dispute material facts of the case – namely, that defendant had actual or constructive knowledge of a dangerous condition or had breached the duty of care.
Plaintiff filed a motion for reconsideration, arguing the defense’s request for an exchange of expert witness information wasn’t timely.
Then, it turned out in the midst of all this plaintiff’s attorney had been suspended from practicing law in California. Plaintiff filed his own motion asking the court for leave to provide late witness disclosures, but the court denied this.
Plaintiff appealed, arguing the court abused its discretion. However, the appeals court affirmed the summary judgment.
The court said that instead of filing a written objection to the request for witness disclosure, attorney should have filed a motion for a protective order. Because he didn’t follow the correct procedure, the failure to exchange expert information was not an abuse of discretion on the court’s part.
This is an especially unfortunate situation for the victim in this case, who was relying on his lawyer to provide him with sound legal counsel. This is one of the reasons our experienced Spartanburg injury lawyers recommend plaintiffs do their due diligence in looking for an attorney. Ask for prior results in similar types of cases. Check with the state Bar Association to make sure the attorney is in good standing. Ask for referrals. Seek a law firm with adequate resources and experience.
Contact the Carolina injury lawyers at the Lee Law Offices by calling 800-887-1965.
Perry v. Bakewell Hawthorne, Feb. 3, 2016, California Court of Appeal, Second Appellate District, Division Two
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Jenkins v. C.R.E.S. Mgt. LLC – Liability for Third-Party Criminal Attack, Feb. 4, 2016, Spartanburg Injury Attorney Blog