Aitken Redesign

CASE DESCRIPTION: Plaintiff, Garrett P., age 10, by and through his guardian ad litem Mark P. filed a suit against the Defendants RAC Properties, et al., who were the building owners during that time.  Mark P. suffered a life altering traumatic brain injury after falling through an allegedly defective skylight on RAC Properties premises.

On May 3, 2007, Garrett P. was visiting Kenny’s Music in Dana Point.  The young boy made his way to the roof of the Defendants’ building and up a staircase designed for roof access.  The staircase to the roof was created, in part, for access to a rental unit that was owned and leased by the Defendants.  Due to this fact, a walking path was created to the rental unit.  In close proximity of the path, there is a free standing skylight separated by a railing, to Code, that created the path to the rental unit.  The skylight itself had no protective enclosure surrounding the unit. Garrett P., a child, was attracted to the various items stored near the skylight including chairs, drawers, and tables.  Mark makes his way to this area and accidently steps onto a flat portion of the skylight.   Upon Garrett’s encounter with the skylight, he looses his balance and falls right through, hitting his head on the ground.  There were no direct eyewitnesses, but a retail tenant employee indicated that Garrett may have been jumping on the skylight.  Subsequently, he suffered a traumatic brain injury from the fall.  Plaintiff Garrett P. was initially treated at Children’s Hospital of Orange County at Mission from May 3, 2007 to June 7, 2007.

Plaintiff contended that the skylight itself had no protective enclosure surrounding the unit.

Garrett P. went to the roof of the defendants’ building.  Garrett was attracted to the various items stored near the skylight, inclusive of chairs, drawers and tables. Garrett made his way over to the skylight area and accidentally stepped on a portion of a flat skylight. Garrett’s encounter with the skylight caused him to lose his balance and fall directly through the skylight.  Garrett fell eleven (11) feet wherein his head struck concrete, causing a major head injury.

Plaintiff contended that the skylight was below the standard of care, based on building code violations, during the ownership of Ruth Clark, RAC Properties.  Plaintiff’s established through their use of experts that the skylight should have been able to withstand 400 pounds of weight.  Yet, the skylight could obviously not sustain the weight of a 10-year-old boy. Therefore, the skylight did not meet the standard of care.

Defendants contended that the building did meet proper building code standards.  Defendants contended that the only way that a person could reach the skylight was to climb over a railing, that was indisputably to Code.  Defendants contended that the skylight itself, thus, did not need further railing surrounding the unit.

Defendants also contended that the mother of the Plaintiff was negligent for the incident.  Defendants contended that the Plaintiff was autistic and had a pattern of erratic behavior prior to the incident.  In addition, Plaintiff having this condition should not have been left unsupervised to climb to the top of the roof structure wherein the skylight was located.

RESULT:  $2,650,000

SETTLEMENT NEGOTIATIONS: The matter was settled after a mediation session in front of Jay Horton at Judicate West.

TYPE OF CASE:  Premises Liability; Personal Injury; Products Liability

INJURIES: Garrett Poore, now age twelve (12), has suffered a variety of injuries, including, but not limited to:

• Traumatic brain injury;
• Occipital and parietal scalp hematomas;
• Right parietal nondisplaced skull fracture (depressed per Dr. ?)
• Right temporal bone fracture extending to the vertex of the right parietal calvarium;
• Right parietal subdural hematoma (small right lateral)
• Right parietal subarachnoid hematoma (small, posterior temporal/anterior parietal)
• Cerebral contusions (right parietal; small right cerebellar)
• Petechial hemorrhages
• Diffuse axonal injury
• Grade I and II bed ulcers

DATE & LOCATION OF INCIDENT: May 3, 2007 at about 4:30 p.m. Dana Point, California

PLAINTIFF’S AGE: 10 years old

OCCUPATION: Elementary school student

PLAINTIFF’S ATTORNEYS:
Christopher R. Aitken
AITKEN * AITKEN * COHN
For Plaintiff Garrett P.,a minor by and through his Guardian Ad Litem, Mark P.

DEFENDANT’S ATTORNEYS:
Monica Cruz Thornton, Esq.
SELMAN & BREITMAN, LLP
For Defendant RAC ENTERPRISES, LLC; RAC PROPERTIES, L.P. and RUTH ANN CLARK

DEFENDANT INSURANCE CO.: Evinstan Insurance and CNA Insurance