A guy walks into a garage and conks himself out cold on a lead pipe hanging from the ceiling.
Sounds like the beginning of a joke, right?
But it isn’t a joke. It actually happened to my client and he was injured seriously as a result.
In fact, when J had this happen in March of 2017, I knew from the outset it would be a very difficult case. With a bit of help from the Covid-19 pandemic, it took me five years to resolve.
J was cutting through an open downtown Chicago parking garage on the way from his train to his job as an executive in the college certification industry. It was raining, and, as many commuters routinely did, J cut through the garage kitty-corner to avoid a few moments of rain and get to work just a bit sooner and drier. Several other commuters did the same thing.
As J walked through the garage, he stepped up onto a raised area only to immediately conk his head on a large cast iron pipe hanging from the ceiling. At 6 feet 1 inches tall, J was unable to avoid the pipe, which hung approximately four inches lower than he.
He was knocked out unconscious for at least 30 seconds and does not recall anything until the paramedics had him in an ambulance.
He was diagnosed with a concussion, and neck pain. He was sent home and advised to follow up with a neurologist.
Later that day, his symptoms became much more severe, with vomiting, dizziness, and confusion. As the weeks and months wore on, his symptoms included depression, loss of word recall, and inability to focus at work. He was irritable, withdrawn, and doing poorly at work.
I knew this case would be hotly contested. J was a trespasser, so the garage owed him no duty of care. Also, even if I got around that hurdle, the garage could argue that the pipe was “open and obvious” to J and that he should have used due care to avoid it. It sure seemed like a dead bang loser.
But I was intrigued. I initially waited for him to complete his medical care, but his symptoms persisted, so I filed a lawsuit against the owner and manager of the property as well as the parking garage operator.
We had to serve process upon all three entities sued, one of which was out of state. This took a few tries. Once the case was “at issue” and everyone had appeared, we began with the written discovery process, featuring interrogatories. Then, we moved to oral discovery, and the defense attorney took J’s deposition. While J did fantastic at his deposition, with the facts of the case, the defense lawyer filed a motion for summary judgment—arguing that even if the facts were taken in light most favorable to the plaintiff, there still was no genuine issue of material fact to be decided. While judges are hesitant to grant summary judgment, there are times when they do, and premises liability cases involving trespassers cutting through parking garages are such instances.
As I captured in my blog from January 2021 I Hereby Judge You Summarily, the summary judgment process is a long and difficult one. First, the defense files the motion. A briefing schedule is set, but first discovery is conducted. My goal was to depose as many employees and managers of the garage as possible to demonstrate they had notice people cut through all the time and that the pipe was a danger they knew or should have known about. I was able to establish awareness of people cutting through.
I also learned that bright yellow bollards had been installed around the pipe after the injury to J to guard against other pedestrians going near it. Unfortunately, in Illinois, “subsequent remedial measures” are generally not allowed into evidence, so that argument would only help me fend off the motion for summary judgment; it would not be useful if the case survived that and went to trial.
A confluence of unfortunate circumstances kept the motion pending for nearly a year and a half. The shutdown of the court for Covid-19, coupled with the judge not getting to ruling quickly meant the case languished in the middle ground of uncertainty for a very long time.
Ultimately, with lots of prodding reminders, a ruling was issued denying summary judgment.
We now began nearly all over again!
Put that in Your Pipe and Smoke it!
Often, a denial of the defense’s motion for summary judgment means that the case can be settled. Granted, there is still quite a bit of pushback in both liability and valuation from the defense, but they usually see that this means the case will survive to trial, that it will take money to defend it, and that there will be risk involved in going to trial.
We did begin on that path, and the defense took depositions of some of J’s treating doctors, who all supported his position that his injuries were causally connected to the pipe head bang, and that he was still experiencing Post-Concussion Syndrome.
As I began negotiating with the other attorney, with whom I had built a great relationship, he became seriously ill and had to retire from practicing law. His partner took over. We built a relationship. Over the course of many months and dozens of phone calls, we worked together to push our respective positions. We read each other’s minds, saw and pushed back on certain positions, and telegraphed our next moves as we moved in concert, yet in an adversarial framework, toward a settlement.
The offer that was initially extended was an insult. This is what I refer to as the “put that in your pipe and smoke it” offer. It’s so low as to indicate the case is not taken seriously or valued even close to how you and your client view it. This is often how some insurers handle cases. As I mentioned, because I had a solid and trusting relationship with the other lawyer, I was able to understand how they viewed the case, where my strong points were, and where their defense was weak. We proceeded in a very deliberate manner, often only moving a few thousand dollars at a time. Inching toward yes.
When I finally got to the point where my client was ready to accept the offer, I then pushed hard to drive up the final number, and improved his take by over $10,000. Finally, we reached a point where no more movement was possible and we settled the case.
This was a case that very easily could have been a “not guilty” of negligence at trial. It is also highly likely that a jury would have attributed a high percentage of comparative negligence to J. We believed it would be nearly 50% (over 50% and the plaintiff would receive nothing). That meant that if the verdict at trial was $120,000, and the comparative negligence was 50%, he would have received $60,000. Also, food for thought is the cost of trying the case. Doctors would have had to be brought in live or had evidence depositions taken of their testimony. Estimates would be in the $5,000-$10,000 range, meaning that those costs (in addition to the thousands already spent on the case) would come off the top of any verdict or settlement. Ultimately, the analysis was that J did better with this settlement than he would have at trial.
- Some difficult cases are worth pursuing as long as you and your client understand the risks at the onset
- Defendants fight premises liability cases aggressively and will use multiple tools to deny responsibility, including summary judgment
- Patience is required during the Covid-19 court shutdown
- Compromise and realistic evaluation of trial value are necessary to achieve a fair settlement
Contact Chicago Personal Injury Lawyer Stephen Hoffman
As in all cases involving injury and potential liability, if you have been hit by a vehicle immediately get medical treatment, report the crash to police and your own insurance company, and contact a lawyer with expertise in your type of case, such as bicycle accidents or pedestrians hit by cars.
If you've been in an accident and have questions, contact Chicago personal injury attorney Stephen L. Hoffman for a free consultation at (773) 944-9737. Stephen has over 30 years of legal experience and has collected millions of dollars for his clients. He is listed as a SuperLawyer, has a 10.0 rating on Avvo, and is BBB A+ accredited. He is also an Executive Level Member of the Lincoln Square Ravenswood Chamber of Commerce.
Stephen handles personal injury claims on a contingency fee basis, which means you don’t pay anything up front, and he only gets paid if you do. Don’t wait another day; contact Stephen now.