$11 Million Settlement on Behalf of Quadriplegic Victim in Pool Accident

COUNTY: Orange

COMPLETE TITLE OF PLAINTIFFS: Isaac L.; Anthony L.

COMPLETE TITLE OF DEFENDANTS: Doe Property Management Company, Doe Homeowners Association, Doe Pool Maintenance Company

CASE NUMBER: 30-2020-01147908-CU-PO-CJC

Complaint Filed: June 10, 2020

COURT: Orange County Superior Court

DATE OF SETTLEMENT: January 8, 2021

AMOUNT OF SETTLEMENT: $11,000,000

TYPE OF CASE: Premises Liability; Negligent Infliction of Emotional Distress

PLAINTIFFS’ ATTORNEYS:

Richard A. Cohn, Esq.

Casey R. Johnson, Esq.

AITKEN✦AITKEN✦COHN

3 MacArthur Place, Suite 800

Santa Ana, CA 92707

Telephone: (714) 434-1424

Facsimile: (714) 434-3600

Email: casey@aitkenlaw.com

DEFENDANT’S INSURANCE: Confidential

DATE/TIME OF INCIDENT: August 26, 2019, at approximately 1:30 p.m.

LOCATION OF INCIDENT: Irvine, California

PLAINTIFF AGE: 20 years old (Isaac L.)

PLAINTIFFS’ OCCUPATION: Isaac L. – Student; Part Time Valet

CASE DESCRIPTION: On the early afternoon of August 26, 2019, Isaac L. joined his family for a barbeque and swimming at the pool within the HOA where his father had recently begun renting a condominium. The rest of the family, including Isaac’s father, uncles, grandparents and cousins were already within the pool area when he decided to join them by walking from his father’s unit into the pool area through the “back” gate.

Isaac entered the pool area and walked across the decking to tables and chairs where his family, including his grandparents, were sitting. He greeted everyone in the pool area and spent ten to fifteen minutes speaking primarily with his grandparents, who were visiting from out of town, when he decided to get into the pool.

Isaac walked over to what he believed was the deep end, the part of the pool furthest from the gate where he had entered the pool area. At all times while in the pool area, there were no “no diving” signs visible to him, (but rather only the numerous “no smoking signs” around the barbeque and tables in the pool area.) Isaac also saw his niece on the other side of the pool, and his uncle, who was closer to Isaac, and visible from the neck/shoulders up – confirming in Isaac’s mind that his uncle was in the deep end of the pool.

While Isaac foreseeably thought that he was safely diving into the deep end of the pool; in fact, there was no deep end, nor shallow end. Instead, the oblong shaped pool is unusually, unforeseeably and counterintuitively configured (without warning) to have a deep side and a shallow side. Thus, thinking he was safely diving directly into the deep end; he was actually diving toward the shallow side of the pool (and into the unusually configured “embankment” that unexpectedly ran lengthwise in the middle of the pool abruptly separating the deep side of the pool from the shallow side.) He impacted the embankment and was immediately paralyzed.

PLAINTIFFS’ EXPERTS: Alison Osinski (Aquatic Safety, Catalina, CA); Rick English (Pool Design, San Diego, CA); Joellen Gill (Human Factors, Mica, Washington); Melodie Metzger (Biomechanical Engineering, Los Angeles, CA); Doreen Casuto (Certified Life Care Planner, San Diego, CA); Catherine Graves (Economist, Fullerton, CA); Amy Magnusson, MD (Physical Medicine & Rehabilitation, San Diego, CA);

PLAINTIFFS’ INJURIES: Isaac suffered spinal cord fractures from C3 through C6 and was determined to have a complete spinal cord injury at C5 with an ASIA Impairment Scale Class A –resulting in quadriplegia/tetraplegia. Anthony L., Isaac’s father, witnessed the injury and therefore maintained a claim for negligent infliction of emotional distress.

PLAINTIFFS’ CONTENTIONS

AS TO LIABILITY: The HOA pool was dangerous for a number of reasons. First, there was no conspicuous “No Diving” signage as required by law. The cardboard sign that was present in the pool area was faded and unreadable. Furthermore, the pool warnings sign was installed on fencing so as to be behind any pool users who entered from the “back” gate, as Isaac did on the date of the incident.

Second, the pool was dangerously designed such that it had a deep side, rather than a deep end. This unusual, if not unheard of, configuration makes the need for reasonable and visible warnings all the more essential.

Third, there were no “No Diving” tiles set into the pool deck to alert pool users that diving was prohibited.

Fourth, the in-pool, wall-mounted depth markers were installed at the water line of the pool and maintained such that they were transected, and in fact almost completely obscured by the water line, thus rendering them unreadable to pool users.

Fifth, the pool was dangerously designed to have two entrances, and all visual cues provide to those entering the pool from the rear entrance reinforced that the rear entrance was nearest the shallow end of the pool.

Sixth, the written and posted “Pool Rules” did not provide pool users with any indication that diving was prohibited in the pool.

Plaintiffs alleged that Doe Homeowners’ Association breached its non-delegable duty as the owner of the pool to maintain the pool in a reasonably safe condition. Plaintiffs alleged that Defendants Doe Property Management Company and Doe Pool Maintenance Company, who were both contracted by Doe Homeowners’ Association, failed to maintain the pool in a reasonably safe condition.

DEFENDANTS’ CONTENTIONS

AS TO LIABILITY: Defendants in the case claimed that they were protected from liability based on the doctrine of assumption of the risk, insofar as Isaac L. assumed the risk of being injured while participating the sport of diving/swimming. Defendants further argued that Isaac assumed the risk of injury by diving into a pool without knowing its depth. Defendants nevertheless tendered the full policy limits of all applicable policies in response to Plaintiffs’ time-limited policy limit demand.

DEFENDANTS’ EXPERTS: Unknown

FINAL RESULT: $11,000,000

MEDICAL SPECIALS: Plaintiff Isaac L. claimed past medical expenses of $275,000 and future medical expenses in excess of $20,000,000.

LOSS OF EARNINGS: Plaintiff Isaac L. asserted loss of future earnings/earning capacity of $2,000,000.

SUBMITTED BY: