$10,125,000: High Profile Plaintiff Collects $10 Million In Premises Liability Suit In Excess Of Policy

Premises LiabilityCASE DESCRIPTION: The plaintiff Ryan C., who is the grandson of singer Pat Boone, fell through a skylight on the roof of his apartment complex and fell three stories down to a concrete floor.  Paramedics arriving at the scene thought he was without hope, but he came out of a coma, suffering traumatic brain injury and paraplegia.  Defendants were insured by a $3,000,000 liability policy of which $1,500,000 was offered due to defendants contentions of comparative negligence.  Plaintiff argued that the insurance policy was open and eventually collected $10,125,000 shortly before trial.

RESULT: $10,125,000.00 total settlement.

SUPPORT RYANSREACH.COM: Ryan C. was treated for his traumatic brain injuries at High Hopes Medical, located in Orange County.  Ryan C. continues to progress in his treatment and has become an example for traumatic brain victims everywhere.  From this incident, the Corbin and Michaelis families have created a foundation for support of traumatic brain victims called “Ryan’s Reach,” for which information can be found at www.ryansreach.com.   This foundation was most recently supported by the Starkey Foundation which provides hearing aids to the poor on an international basis. Upcoming events include The Concert for Ryan’s Reach to be held on January 27, 2005, at Saddleback Church and the Pat Boone Celebrity Golf Classic held on June 27, 2005.

This litigation arose out of a tragic incident that occurred on June 19, 2001.  On that day, Ryan C.Premises Liability and his roommate ventured to the roof of their Santa Monica Apartment Building to sunbathe.  On the roof, in proximity of the entrance, stood a roof opening covered by a corrugated fiberglass composite.  Ryan C. stepped on the edge of the corrugated fiberglass, fell three stories through the roof opening and suffered traumatic injuries.  Ryan C., through his conservator Charles M., mother, Lindy M., and grandparents, Pat and Shirley Boone brought an action for damages against the Westbrent apartment owners and the original builders of the apartment complex.  The apartment building that was the focus of this litigation was built in 1963 by the Doe builder defendants.

Plaintiff contended that the apartment owners were negligent in that they failed to warn of a known concealed danger on the roof.  Plaintiff established, through the deposition of the apartment owner defendants, that the owners considered the roof opening a dangerous condition (as well as the roof in general).  Plaintiff also established, through the depositions of the property managers and owner defendants, that the owners were aware of several individuals using the roof prior to the incident in question.  Prior to the incident, several tenants had used the roof for not only sunbathing but watching Fourth of July fireworks.  Despite such notice, plaintiff contended that the apartment owner defendants provided no written warnings of this dangerous condition to the tenants themselves.  Plaintiff established, through the depositions of several past and former tenants of the apartment complex, that the property owners did not give any verbal warnings of this known dangerous condition.  (The property owners testified in deposition that they did indeed give verbal warnings to the tenants regarding the prohibition of using the apartment roof for any purpose.)  Plaintiff contended that the subject roof opening was not open and obvious but, rather, was flush to the roof service and thus presented a hidden trap.

Plaintiff contended, through the use of expert testimony that the roof opening itself was below the standard of care of the construction industry since the time of its inception in 1963.  Plaintiff contended that OSHA required that such a roof opening be surrounded by a guard rail and/or the covering needs to be able to support up to 200 pounds.  Plaintiff further contended that the corrugated fiberglass was prone to outdoor sun exposure which would further weaken the strength of such fiberglass.  Plaintiff demonstrated that the corrugated fiberglass could of been replaced by an appropriate covering at a local Santa Monica Home Depot for less than $50.00.  At the very least, plaintiff contended that the apartment owners could of installed simple warning signs or an alarm on the entrance door of the subject roof.  Plaintiff contended that although the roof access door was surrounded by a guard rail, the guard rail had a door that was always left in the open position.Due to all these factors, plaintiff contended that this incident was easily preventable.

The Plaintiff next turned to the Builder’s liability.  Plaintiff contended that the builder defendants were liable as the roof opening was under the standard of care for the construction industry since its inception.  Plaintiff contended that OSHA required that such a roof opening be surrounded by a guard rail and/or the covering needs to be able to support up to 200 pounds.  Plaintiff further contended that the corrugated fiberglass was prone to outdoor sun exposure which would further weaken the strength of such fiberglass.  Plaintiff also contended that the builder defendants were negligent in originally designing a roof opening near a public access to an apartment roof.

In response to the allegations asserted by the Plaintiff, the apartment owner defendant contended that plaintiff was completely responsible for the injuries suffered on the day of the incident.  Apartment owner defendant contended that Ryan C., and his room mates, were specifically verbally warned to not go on the roof at any time by the apartment property managers.  They further contended that the roof was not an attractive nuisance in that it was covered by gravel and complex utilities and thus not suitable for sunbathing or any other recreational activities.  Defendants contended that the apartment complex provided sun recliners in their courtyard for these purposes.  Due to the gravel nature of the roof itself, Defendants contended that it was not foreseeable that tenants would use the roof for such purposes.

The apartment owner defendants further contended that plaintiff knew, or should have known, to avoid the subject roof opening.  Defendants contended that the roof opening was open and obvious and could easily be distinguished from the roof surroundings.  Defendants contended that it was highly negligent for Ryan Corbin to step on such corrugated fiberglass.  Since he was on a roof, Defendants contended that plaintiff owed himself a special duty of care to be aware of such open and obvious dangers.

Defendants disputed that they had any notice of tenants using the roof prior to the incident.  Defendants stated that they appreciated the potential danger of tenants negligently using their apartment complex roof and had installed, on different occasions, a lock to prevent such use.  The Los Angeles County Fire Department, however, had ordered the apartment owner defendants to remove such locks.  Defendants contended that even if such lock was not on the door, the access door itself was surrounded by a guard rail.  The apartment owner defendants and the property manager testified in deposition that they made special efforts to keep such guard rail door on the property in the closed position.

Apartment Owner defendants further contended, through expert testimony, that the subject roof opening was compliant to Los Angeles Building Code standards.  They contended that the apartment complex was inspected on several occasions by the City of Los Angeles and that no violations on the roof had ever been found.  Defendants finally contended that Ryan Corbin’s incident was the first injury on the roof in over 30 years of known ownership.

The apartment owner defendants filed, and plaintiff responded to, a motion for summary judgment filed by the apartment owner defendant on the issue of recreational use immunity and that the roof opening was “open and obvious.”

The builder defendants stated that they could not be liable for a latent defect which was installed over 35 years prior to the incident.  The builder defendants contended that, if any negligence was found in this matter, it would be assumed by the apartment owner defendants who had owned such building for over 30 years.  The builder defendants joined in the arguments of the apartment owner defendants as it relates to the comparative negligence of Ryan Corbin.  The builder defendants particularly emphasized that the roof opening was open and obvious to the public.

The builder defendants filed, and plaintiff responded to, a motion for summary judgment contended that the roof opening was a patent defect and thus they could not be held, under the statute of limitations for such actions, for the injuries to plaintiff.

EXCESS LIABILITY ISSUES: The apartment owner defendants were insured by an insurance policy of $3,000,000 through Sequoia Insurance Company.  As such, defense counsel for defendant apartment owner stated that any recovery in this matter is limited to the $3,000,000 policy.  Plaintiff’s counsel argued that the insurance policy should have been tendered prior to the retention of counsel, Aitken, Aitken & Cohn.  Rather, defendant allegedly offered $1,500,000 due to comparative negligence issues prior to plaintiffs counsel’s retention.  Plaintiff’s counsel in mediation, with assistance of cumis counsel Roland Wrinkle, was able to convince Sequoia Insurance that their insurance policy was indeed open in that they contributed $10,000,000 in the face of a $3,000,000 policy.

TYPE OF CASE: Personal Injury; Premises Liability

INJURIES: Plaintiff’s counsel contended that plaintiff suffered traumatic brain injury (skull fracture, brain trauma), cervical injury, facial injury, internal injuries, and non-displaced pelvic fracture resulting in seven surgeries through the course of treatment.  Plaintiff’s counsel contended that Ryan C. needed a full time life care services for the duration of his lifetime.  Defendant disputed the nature and extent and permanency of plaintiff’s injuries.

DATE & LOCATION OF INCIDENT: On 6/19/01 at approximately 3:30 p.m. at Plaintiff’s apartment in Brentwood, California.

PLAINTIFF’S AGE: 24 at time of incident.

OCCUPATION: Production Assistant to television hit show “Will and Grace”

PLAINTIFF’S ATTORNEYS:
Wylie A. Aitken & Christopher R. Aitken
AITKEN, AITKEN, COHN
For Plaintiffs – Ryan C., through his Conservator Charles M.

DEFENDANTS’ ATTORNEYS:
David Belofsky
LAW OFFICES OF DAVID BELOFSKY

For Defendant : Westbrent Limited & Westbrent Management Corporation
Michael Lawler
LAW OFFICES OF MURCHISON & CUMMINGS

For Defendants – Harold & Sydney Matorin (Apartment owners)
Steve Segura
Veatch, Carlson, Grogan & Nelson
For Defendants – (for builder defendants)
Roland Wrinkle
GRASSINI & WRINKLE (cumis counsel)

For Defendant – Harold & Sydney Matorin (Apartment owners)

DEFENDANT’S INSURANCE CO.:  Sequoia Insurance Company

Aitken * Aitken * Cohn

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