Lawyer Says Discovery Was Key To Verdict
Verdicts and Settlements Plus
By Huck Qavanaugh
Ohio Lawyers Weekly
December 25, 2002
A Cleveland lawyer has won a verdict of $750,000 in a municipal negligence suit brought on behalf of a client whose car struck an uncovered catch basin drain and collided with a utility pole.
W. Craig Bashein grounded his complaint against the City of Cleveland in municipal negligence for failing to maintain its streets. A subsequent claim for loss of consortium on behalf of his client's children is forthcoming, he promised.
Bashein said the case, Mattis v. City of Cleveland , typifies the difficulty of dealing with a municipality, commenting that the City of Cleveland seems to prefer court over admitting responsibility during settlement negotiations - even if it means larger recoveries for plaintiffs.
"I have found that the City of Cleveland, for whatever reason, does not like to take its medicine outside of court," remarked Bashein. "They don't like to try to resolve cases on a basis that a private insurer would use."
As a result, countering the city's contention that it responded quickly and adequately to its notice of the open catch basin became Bashein's chief charge.
He credited discovery for dismantling what ultimately proved to be an untenable defense.
The city's refusal to settle cost the taxpayers. The verdict nearly quadrupled the defense's highest offer of $200,000, and the plaintiff had demanded only $450,000 to avoid the expense of a trial.
[This verdict is also reported in the Verdicts & Settlements section of this issue.]
On March 11, 1998, Bashein's client was driving west in the curb lane of Wade Park Boulevard in Cleveland when she felt her car suddenly "drop down."
She immediately found herself unable to control the car and struck a utility pole to the right of the road on the northeast corner of the intersection at E. 86th Street.
An investigation into the accident by a Cleveland police officer and the city's Accident Investigation Unit revealed that a large, curbside catch basin drain, similar to a manhole, did not have a cover. The cover had broken and fallen into the basin itself, where litter and debris had also accumulated.
The investigators' report attributed the cause of the accident to the catch basin's causing the plaintiff's tire to blow out, and ruled out any contributory fault on the part of the plaintiff.
Photos of the open catch basin were therefore taken.
Bashein said the photos were "very, very compelling" because the presence of old debris indicated the catch basin had been coverless for some time.
The plaintiff suffered bilateral fractures to both femurs.
Surgery required the use of hardware, and the plaintiff was hospitalized for three and one half weeks.
The injuries also left one of the plaintiff's legs shorter than the other, resulting in a limp. It was four months before the plaintiff could walk without a wheelchair or crutches.
The plaintiff will also require at least two arthroscopic surgeries and four operations to repair scarring.
Bashein immediately confronted difficulty convincing the City of Cleveland that it had breached its statutory duty to keep its roadways free from defects and in repair.
He said he has a number of cases against the City of Cleveland where the city has refused to acknowledge any liability or to negotiate in a manner consistent with risk analysis.
Bashein therefore continued with discovery, subpoenaing a number of witnesses to testify. He also began acquiring documentary evidence related to the city's road maintenance.
Bashein obtained most of his documentary evidence through duces tecum , which he said proceeded smoothly. Through it, Bashein learned that the city had notice of the catch basin danger at least 24 hours prior to the accident.
A document obtained from the Bureau of Sewer Maintenance showed the Bureau had received a call on March 10, 1998 - the day before the accident - from a citizen alerting the city about the open catch basin at E. 86th St. and Wade Park Blvd., he said.
The call came in at 9:56 a.m.
Bashein explained that at the bottom of the document was a space that allows the city inspector to respond to the call-in complaint.
In that space, Bashein continued, the inspector signed the document, checked off "barricaded" and wrote "10".
It's About Time
According to Bashein, the inspector's supervisor testified that, since his department only works during the day, the "10" must refer to 10:00 a.m.
Bashein said the city attempted to argue that, although no date was written on the bottom of the call-in complaint, the open catch basin was barricaded on the same day the citizen called in his complaint.
This ambiguity could frustrate the plaintiff's action, Bashein worried, since the city was claiming a quick and adequate response to the hazard once it was put on notice of the hazard.
"This was, in my opinion, the biggest hurdle in the case - at least from a liability standpoint," Bashein commented. "Number one, is it a legitimate claim? And number two, if it is legitimate, is it an appropriate response to a missing cover on what we argued was a busy street?"
Beginning in voir dire and continuing throughout the trial, Bashein maintained that the 10:00 a.m. reference could not possibly refer to the day of the call-in complaint.
He explained to jurors that the procedure for following up on citizen call-in complaints is not so speedy. First, a card is typed up containing the basic information relevant to the complaint. The complaint card is then forwarded to the office of the inspectors. When they receive the information, Bashein continued, they try to get to the locus of the hazard as quickly as possible.
However, Bashein said he pointed out that the inspectors are responsible for a huge territory, and do not always respond to call-in complaints on a timely basis.
"And to suggest that, at 9:56 a.m., a call comes in and the hazard is barricaded four minutes later, we argued, was nonsense," Bashein asserted.
Bashein also said he thinks the jury was persuaded by another piece of evidence he presented to rebut the city's assertion of timeliness.
"It took the Cleveland Police Department - on a 911 call with a girl trapped in a car and live wires down on her car - over two times that amount of time to get to the same address," Bashein told the jury.
That the Bureau of Sewer Maintenance would respond twice as rapidly to a missing cover complaint was "a little hard to believe," he argued.
The city also argued that 10 o'clock is a general time - that the "10" could have meant, for example, 10:50 a.m., allowing ample time for city workers to respond to their notice.
"My argument was, 'The proof's in the pudding,'" said Bashein. Plenty of emergency personnel arrived at the scene, including the Accident Investigation Unit, and no one reported seeing any evidence of a barricade around the hazard, Bashein noted.
The more logical proposition, he maintained, was the "10" referred, at the earliest, to 10:00 a.m. on the day of the accident. That would time the placement of the barricade at least two hours after the time of the plaintiff's accident.
Bashein's discovery efforts were again effective.
To support his version of the facts and further undermine the city's defense, Bashein said he unearthed another document identical in form to the March 10, 1998 call-in complaint.
This form, however, indicated that the catch basin cover was still missing and that the complaint was called in by a Cleveland Police Dispatcher at 8:40 a.m. on March 11, 1998
Over A Barrel
Bashein also retained a traffic engineer and accident reconstructionist as an expert witness to furnish an opinion as to whether the barricade - assuming it had been erected in a timely fashion - was an adequate response to the hazard.
The expert opined that an orange barrel or "horse" was not a satisfactory means to prevent accidents that could be caused by an open catch basin.
The use of a mere barricade was itself negligent, the expert testified.
The expert also noted that the city had admitted during its testimony that orange barrels and horses often turn up missing, due to theft or collision, after they have been erected.
Bashein said the city, in its defense, called the Deputy Commissioner for Sewer Maintenance. However, after about 20 minutes of cross-examination, the witness finally admitted that a barricade was not an adequate response to the danger posed by the open catch basin.
Further, a key deposition, Bashein maintained, was that of the man responsible for replacing the manhole and catch basin covers throughout the city.
According to Bashein, the city worker drives a dispatched truck throughout the city, replacing 40 to 50 covers per month which he carries with him in his truck.
Bashein said that, each morning, the worker picks up the forms indicating the roads' needs and receives additional instructions by radio dispatch.
The worker testified in his deposition that he was never instructed on March 10, 1998, to service the catch basin at the scene of the accident.
The city, confronted with this deposition, nonetheless refused to meet the plaintiff's settlement demand. Instead, it argued at trial that the worker was a busy man who could not have made it to the catch basin more promptly to replace the cover.
Bashein countered that the garage the worker returns to at 3:30 p.m. every day is less than 10 minutes from the accident site, and that the worker could easily have made a run to replace the cover had he been instructed to do so prior the accident.
Road To Recovery
Bashein said his client worked hard to recover from the accident, minimizing her time away from work and the disruption to her lifestyle.
"I think jurors respect that," he said. "I don't think jurors give as much respectability to someone who stays out of work by laying on a couch all day and not trying to get better."
Bashein related that an orthopedic doctor testified that the plaintiff was brave, tough and the first patient he had with bilateral femur fractures who actually returned to work in a wheelchair.
The verdict included $4,900 in lost wages, $65,000 in past medical expenses and $40,000 in future medical expenses.
Bashein recalled the City of Cleveland's argument that the future medical expenses were "speculative" and did not belong in a case such as this.
He responded by pointing out that the city decided not to call any doctors as experts, and thus could not properly contest the plaintiff's experts' conclusions regarding damages.
The remainder of the verdict covered damages Bashein described as inability to perform normal activities, pain and discomfort, and emotional damages, both past and future.
A loss of consortium claim on the part of the children is in the works, he said, and a motion for prejudgment interest is pending.
VERDICTS AND SETTLEMENTS
Civil-Motor Vehicle Accident - Maintenance of Streets
Bilateral femur fractures
Name of case: Matis v. City of Cleveland
Court/case no.: Cuyahoga County Common Pleas Court, No. 39512
Name of judge: Mary J. Boyle
Tried before judge or jury (or mediation): Jury
Amount of award: $750,000
Special damages: $65,000 (past medical); $40,000 (future medical); $4,900 (past wage loss)
Highest offer: $200,000
Date: November 16, 2000
Most helpful expert witnesses: Dr. Robert Fumich, Beachwood; Carmen Daecher (traffic engineer and accident reconstruction expert); Camp Hill, Pa.
Attorney for plaintiff: W. Craig Bashein, Cleveland
Attorney for defendant: Withheld
Other useful information:
On March 11, 1998, the plaintiff was driving west bound on Wade Park Blvd. in Cleveland, when her right front tire struck an uncovered catch basin drain located in the right-hand lane at the intersection of Wade Park and E. 86th St. As a result, the defendant's right front tire blew out, causing her vehicle to leave the roadway and strike a utility pole at the northwest corner of the intersection.
As a result of the collision, the defendant sustained bilateral fractures to her femurs. She was transported to Mt. Sinai Medical Center where she underwent surgery on that date including the use of roding and screws. The defendant was confined at Mt. Sinai and MetroHealth Medical Center for a total of 3.5 weeks. As a result of these injuries, it took approximately four months before the plaintiff could walk without the use of a wheelchair or crutch.
The plaintiff demonstrated at the trial that the City allegedly had at least 24-hours advanced notice of the missing catch basin cover prior to the incident. The plaintiff also showed that the catch basin was a direct result of the accident. The defendant admitted to receiving prior notice and claimed to have placed a barricade around the drain cover.
The jury returned a verdict for the plaintiff after 2.5 hours of deliberation.