Jackie Leibl Weintraub

Verdicts / Settlements (Case Results)

• $2 million Settlement - Premises Liability - Dangerous ConditionFacts & AllegationsOn June 8, 2020, plaintiff Colomba Osorio, 64, a housekeeper, fell into a deep trench in the backyard of the home of Amir Malekghassemi. Prior to this, the hole was dug by Sierra Creek Pool and Spas as part of an ongoing construction project that included erecting a patio cover in the backyard. On the date of the incident, Osorio arrived at the Malekghassemi’s house to perform housecleaning, as she had been doing approximately twice a week for the family leading up to this date. The front door was locked when she arrived so she went around to the backyard to enter from the back door, as was her custom and practice. Osorio was aware a construction project was underway on the premises. On the back patio, she encountered it covered with a sole piece of large, thin, plywood just outside the sliding back door of the residence. Osorio testified no caution tape was present around the plywood and that there were no cones, writing, blockades, or any other feature to alert persons not to move the plywood. When Osorio encountered the plywood before entering the house, she believed it was a piece of debris left over from the ongoing construction work and that someone could trip on it. She decided to pick it up and move it to a safer location. As she lifted the plywood and stepped forward to slide it out of the way, her view of the floor was obstructed by the plywood and she immediately fell into the deep trench beneath. Osorio sustained injuries to her foot and back. Osorio sued Sierra Creek Pool and Spas Corporation, Amir Malekghassemi as trustee of the Malek Family Trust and Amir Malekghassemi. Osprio alleged premises liability – failure to warn, dangerous condition claims against the owners of the residence, Malekghassemi and the Malekghassemi trust, as well as negligent supervision against the constructors, Sierra Creek Pool and Spas Corporation. Osorio contended that she was unaware that the workers had dug the large trench on the back patio and covered it with the plywood. Plaintiff’s counsel disputed defendant’s claim that there was caution tape around the plywood. The Malekhassemi defendants alleged that Osorio was not supposed to go around the back of the house; that there were other entrances to the house they had explicitly instructed her to enter from; and that she was aware of the ongoing construction and should not have moved the plywood. Sierra Creek argued that they took all reasonable safety precautions; that building inspectors were routinely on the premises and their work had received the appropriate permits; that it advised the homeowners of the open trench and to stay away from the area; that they posted a construction sign for the job; put caution tape around the plywood; and complied with the industry standard of care to keep the area safe. They further argued that Osorio should not have moved any plywood or materials in an active construction site and that Osorio was the negligent one.  Injuries/DamagesFoot, fracture, foot, fracture, foot, fracture, heel/calcaneus, decreased range of motion, hardware implanted, physical therapy, pins/rods/screwsOsorio claimed she sustained fractures to four of the five metatarsals in her left foot and a fractured heel, ultimately requiring a subtalar joint fusion. Immediately after the incident, Osorio was taken to the emergency room where, among other treatment, x-rays of her left foot and ankle revealed the multiple fractures of her foot and heel. She was put in a splint, given pain medication and recommended to follow up with an orthopedist. Osorio consulted with an orthopedic surgeon who recommended letting her calcaneal fracture heal first and then, depending on the severity of her continuing swelling, pain, reduced range of motion, and post-traumatic arthrosis, conduct a fusion of her subtalar joint in the future. Subsequently, Osorio continued to have very limited and painful range of motion and swelling, was in and out of CAM boots/ walking boots used to immobilize the ankle, and attended physical therapy while continuing to follow up with her orthopedist. However, this conservative treatment failed and she sought further consultations with podiatric pain specialists who tried to relieve her pain with two Kenalog and Dexamethasone injections. Unfortunately, the injections only provided minimal temporary relief and she was left with no choice but to re-evaluate surgical intervention. In July 2022, Osorio met with a podiatric surgeon for a consultation. After an updated round of x- rays, a CT scan, and an ultrasound of her left ankle, this physician allegedly noted severe arthritic changes of her subtalar joint, which allegedly caused Osorio difficulty in walking and standing, and this physician recommended a left subtalar joint fusion. Osorio underwent the procedure on Nov. 11, 2022. She continued with follow up check-ins and x-rays over the next year. Although the surgery had helped her pain and mobility, she claimed she was still experiencing pain. After evaluation by plaintiff’s expert orthopedic surgeon, Osorio was advised that there was a surgical screw that was slightly penetrating her ankle joint that needed to be removed. This expert estimated the additional surgery would cost approximately $20,000. It was expected that even though Osorio would likely be able to engage in regular activity and weight bear on her foot again following the screw removal, she would always have a varying degree of pain in her left heel as an ongoing consequence of her heel fracture. Plaintiff sought $123,837 in past medical expenses, $20,000 in future medical expenses, and approximately $70,000 to $84,000 in past loss of earnings. She also sought recovery of damages for her past and future pain and suffering. Defendant produced significant Sub rosa video footage of Osorio taken after her foot surgery that defendant would have attempted to introduce at trial to impeach Osorio’s deposition testimony that she was still in significant pain following her surgery that restricted her activities of daily living and that she continued to use her cane 24/7 when ambulating. The Sub rosa footage showed Osorio cleaning outside her home, without a cane or any type of assistive device, including sweeping, pulling a large dumpster towards her, washing her car, and climbing up onto the driver’s door of the vehicle to clean the windshield. Plaintiff alleged that none of the footage actually impeached Osorio’s testimony. Plaintiff Attorneys: P. Christopher Ardalan & Jacqueline Weintraub, 2024