Charlie Walker recently obtained a 10-2 defense verdict on liability in a premises case in Jefferson County. Plaintiff’s attorneys were Aubrey Williams and Phillip Williams.

Plaintiff Ed Kirby fell on a flight of common area steps at the Saddlebrook Apartment complex and sued the owner and manager at the time. He claimed a step collapsed and caused him to fall. His testimony was inconsistent claiming a tread broke, then a riser; that it was already missing versus collapsed; and then all those things versus he didn’t know how he fell. His upstairs neighbor Marilyn Smith testified via deposition excerpt that she saw him after he fell (not the fall itself) and that she had warned the management company the day it happened that another tenant had beaten the steps with a hammer in hopes of crippling her. She also said in those excerpts that she didn’t learn that until after the fall and that she didn’t know herself that there was anything wrong with the step.  Both inconsistencies brought her entire narrative into question.

The property manager testified that they were told the day after the fall by the neighbor that the step was broken due to the hammer incident. The neighbor never mentioned Kirby’s fall at all. The manager promptly fixed the steps the same day they were told about them. The steps were of the bottom steps, not the top where Plaintiff claimed to have fallen.

Plaintiff missed expert disclosure deadlines and then was forced to rely on one treater who treated him with two pain shots several months later. Dr. Dean Collis admitted that he couldn’t testify to the ER or rehab treatment Kirby had undergone. He also had no idea of Kirby’s long history of back pain with similar injections and three fusion surgeries after a career in the local fire department.  Dr. Joe Zerga was our expert. He testified that Kirby’s lower back pain and radiating leg pain were not new and all preexisted. He also said that the symptoms were all related to his 2018 stroke which caused left sided symptoms. That coupled with his not taking Eliquis as prescribed and his taking cocaine before the fall led to stroke-like symptoms that were the cause of his fall. 

Since the fall involved a common area, the jury was given an instruction that the owner/manager had to have knowledge of an unreasonably dangerous condition for enough time to have remedied the defect.  The jury answered that the owner did not have such notice, so a defense verdict was rendered.

Charles A. Walker

Sewell & Neal, PLLC

220 West Main Street, Suite 1800

LG&E Center

Louisville, KY 40202

Office: (502) 582-2030 (ext. 4267)

Direct: (408) 577-3231

Fax: (502) 561-0766

Email: cwalker@sonlegal.com

 www.sonlegal.com