Given that the details of a recently concluded Clayton County slip-and-fall trial were, in the words of the winning lawyer, “worthy of The Jerry Springer Show,” it may be appropriate that the whole mess started with unpaid alimony.
The case first ended with a hung jury. In Round 2, a second jury finally resolved an otherwise routine case with a defense verdict.
“It was a fun fact pattern” involving “quite a cast of characters,” said defense lawyer Lee Welborn of Marietta’s Downey & Cleveland, who twice squared off with Fried Rogers Goldberg partner Michael Goldberg and Russell Deutschman of the law office of Kenneth S. Nugent over the case that began with a woman who set out looking for her errant ex-husband and ended up with a shattered ankle and more than $50,000 in medical bills.
“We knew that there was a less than 10 percent chance of winning on liability, but it was a real injury,” said Goldberg, who was called in to try the case a couple of weeks before the first trial. “But I never turn down the chance to take a case to trial when there is a real injury involved, no matter how tough the liability picture.” Goldberg, who asked the jury to award $1.4 million at closing, said via email there are no plans to appeal the verdict.
The case began when the plaintiff, Lorraine Merrow, went looking for her ex, Welborn said.
“Lorraine had been awarded alimony against her ex-husband, Max Moody, but she never could collect,” he said. “So she and her 90-something-year-old mother and Chris Tanksley, the ex-husband’s mother’s boyfriend, decide to go hunting for him.”
Merrow knew Moody worked along Highway 54 in Jonesboro, Welborn said, so one rainy day in August 2008, the trio cruised around until they saw Moody’s blue van parked at a Budget Inn on Tara Boulevard.
“Turns out he was holed up in the Budget Inn with his girlfriend,” said Welborn. Merrow didn’t know which room Moody was in and started banging on doors, he said, but no one answered any of them, so she went to the manager’s office and got his room number.
But while she was in the office, Moody’s girlfriend Jessica Clark — who had seen Merrow — ran out to move the van.
Merrow saw the van was gone and rushed out of the office, Welborn said, but as she stepped from the landing to a tiled step below, she slipped and fell.
“There was a welcome mat on the step; she says it flew out like a surfboard ’cause it was sitting on top of water on the tile,” Welborn said.
Merrow was badly injured, he said, fracturing her right ankle in three places and undergoing surgery to insert pins and screws, accruing more than $52,000 in medical bills.
But Merrow’s fall didn’t defuse the situation.
“So, now it’s on like Donkey Kong,” Welborn said. “At this point, no longer fearing the wrath of her rival, Jessica Clark comes out and begins going at it with Lorraine, who’s laying there on the sidewalk.”
A Clayton County police officer arrived on the scene, Welborn said, but Merrow told him she didn’t want the officer to call her an ambulance. She wanted him to go find Moody, who had made himself scarce, and get her money.
“This rookie officer’s there trying to figure out what’s going on,” said Welborn, [while] “Jessica’s telling him [Lorraine]‘s crazy.”
The officer ran Clark’s name through his computer and found out she was wanted on outstanding warrants in Macon, cuffed her and put her in the patrol car, Welborn said.
Since Merrow had declined an ambulance, the officer left, Welborn said. Tanksley asked the hotel owner-manager, Dahyadhai Patel, if he could use the phone to call 911, Welborn said, but Patel ordered the whole bunch off of his property. Merrow, despite her injuries, “drives left-footed to Spalding Regional Hospital,” where she was treated for her injuries, Welborn said.
A few days later, Welborn said, Merrow and a friend returned to the hotel to take pictures of the front entrance and were seen by a hotel staff member.
In addition to images of a welcome mat on the landing, he said, “they have pictures of a very angry Indian woman running at them in time-lapse photography.”
In December 2009, Deutchman filed a negligence suit on Merrow’s behalf against Dahyadhai and Yashsavi Patel and the Budget Inn’s corporate owner, identified at the time of trial as Punit Inc.
Punit is owned by the Patels, and its insurer, Auto-Owners, retained Welborn. The Patels were dropped as individual defendants before trial.
Prior to trial, Merrow made a $100,000 offer of judgment to settle, and the defense countered with a $15,000 bid; both were refused.
In February, the case was tried before Clayton County State Court Judge John Carbo.
Welborn said he was taken aback during jury selection for the first trial, when his client’s ethnicity became an issue.
“I told the jurors, ‘I’m going to represent an Indian man named Patel who owns a hotel. Can you put aside any predispositions and give him a fair hearing?’”
Four hands went up, he said, “and they all gave impassioned speeches about why they didn’t like Indians with their hotels and their convenience stores. I was in disbelief. And they were willing to say it right there in a packed courtroom, having been sworn in.”
Those jurors were dismissed for cause, and a panel was finally seated, he said.
After two days of trial and two days of deliberations, the jury still couldn’t make up its mind, according to the mistrial order Carbo entered March 2.
The results didn’t inspire confidence, said Goldberg.
“Judge Carbo polled the jury afterwards, and it was 8 to 4 against us, with 8 jurors wanting to give a defense verdict,” Goldberg said.
After that, he said, the defense offered to settle for $20,000.
“We told Lee the client would take [$50,000] to settle the case, which is less than the medical bills,” said Goldberg. No deal, Welborn replied.
The second trial commenced June 4, again before Carbo.
According to Welborn, the plaintiff called as an expert an engineer, Larry Genn, who testified that the tile on the step was too smooth for exterior use and that it was improper to place a welcome mat without fixing it to the surface.
A Clayton County assistant fire chief also testified that a welcome mat not affixed to the surface violated Georgia’s accessibility code, he said.
“I sent a photographer out and got photos of both of them going into buildings every day with unsecured mats,” Welborn said. “The fire chief had an unfastened mat in front of his office, too, and the courthouse even has an unfastened mat, so I had a lot of fun cross-examining them.”
Welborn called Robert Merz, also an engineer, who testified that the tile was appropriate for indoor and outdoor use.
“I sent him over to do what Goldberg said had happened in his opening: Make [the mat] slide like a surfboard. He went over to the Budget Inn and jumped on it, and couldn’t make it move at all.”
In addition to the doctor who operated on Merrow, the plaintiff called several friends and family members as impact witnesses, he said.
After a two-day trial, the jury of two men and 10 women, including nine African-Americans and three white members, took 55 minutes to find for the defense, Welborn said.
Afterward, both lawyers said conversation with jurors revealed that they simply felt Merrow had slipped and fallen in the rain.
“I have to give Lee and his client credit for sticking to their guns,” said Goldberg, speculating that the cost to the defense of trying the case twice likely was more than the plaintiff’s last demand of $50,000. “They knew that they had a 90 percent chance of winning on liability, and they were not going to pay a claim that they didn’t owe, and I respect them for that.”
“I told him after the verdict that he did a great job, and I hoped that next time I would have a few of the facts in my favor,” Goldberg added.
Welborn said the trial was his 101st jury trial since coming aboard with Downey & Cleveland in 1988.
He said that, while he hoped to have the March mistrial end in victory to mark his 100th, “it’s fun to have it finish out at 101.”
“Lee was fun to try this with,” added Goldberg. “Twice.”
The case is Merrow v. Punit, No. 2009CV11621.