Litigation
Jul. 20, 2002
'Damn Lovefest'
An elderly woman claimed she hurt herself after tripping over a bench outside a church. But the attorney argued that the alleged danger was "open and obvious."
FACTS
On April 17, 1999, plaintiff Shirley Kush, 75, attended a religious service at defendant University Church of Seventh Day Adventist in Loma Linda.
With hundreds of others, Kush exited the church following the service. She tripped over a bench allegedly obscured by the crowd of parishioners milling about. She suffered a fractured left hip and left shoulder. The following day, she underwent partial hip replacement surgery.
CONTENTIONS
P - Because the bench became obscured by parishioners, it constituted a dangerous condition created by the church. The bench should have been placed elsewhere.
D - The position of the bench made any alleged danger open and obvious. The plaintiff should have known the bench's location because it had been there for 25 years. Moreover, the plaintiff had fallen before reaching the bench.
MILLIONS UNHARMED
Someone who had attended the same service as the plaintiff claimed that the plaintiff fell before she reached the bench.
But defense attorney John W. Short of Riverside's Driscoll & Reynolds didn't want to rely on the jury weighing the credibility of each side's witnesses. That's because everyone supporting the plaintiff's position was so appealing and sympathetic.
"The trial was a damn lovefest," Short says.
So he pointed out some facts that suggested the church had acted reasonably. He emphasized that the client had placed the bench outside nearly 25 years ago. Since then, millions of people had visited the church without incident, he said.
Opposing counsel Peter S. Forgie of Westlake Village's Forgie, Jacobs & Leonard calls that statistic "a killer."
But Forgie says that the primary reason that the jury didn't buy his arguments was not Short's tactics but the good standing of his client, which is loosely affiliated with its neighbor, the well-respected Loma Linda Medical Center.
Many people from that area consider the two institutions one and the same.
"It's practically an icon in the community," Forgie says.
'ESOTERIC' EXPERT
The plaintiff did produce a liability expert who testified that even a careful person would lose sight of or forget about the bench.
But Short considered the expert's explanations "a little esoteric."
"I was able to contrast them with everyday life and to keep the jury thinking on a common-sense level," he says.
For instance, the expert said that, because the bench stood knee-high, it appeared only in the plaintiff's peripheral vision, which made seeing the object more difficult.
On the other hand, Short argued that everybody, regularly and often with crowds around, safely negotiates potential obstacles such as curbs, planters and, yes, even benches.
Eron Yehuda
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