Wicker Smith’s Sarasota Team Receives a Defense Verdict in Premise Liability Case!
SARASOTA – JULY 26, 2021 –Wicker Smith O’Hara McCoy & Ford P.A.’s Douglas B. Lumpkin, Michael T. Polk, and Andi Easterling received a defense verdict in Manatee County in a premise liability case involving a minor child in a utility terrain vehicle (UTV) accident. The Plaintiff’s demand totaled $4.9 million and included alleged symptoms associated with permanent traumatic brain injury. Wicker Smith attorneys proved to the jury that despite an accident, neither the owner nor operator of the UTV were negligent, thus rendering a defense verdict. Wicker Smith’s Sarasota team, after seeking opinions from medical experts concerning the Plaintiff’s current condition, also argued that while the Plaintiff did experience a concussion, her symptoms resolved eleven (11) months after the accident.
Factually, the client’s 12 year-old daughter was driving a UTV with 4 passengers between the ages of 11 and 12 years old when the vehicle tipped on its side. The Plaintiff (11 years-old at the time) struck her head on the vehicle’s metal roll bar during the accident. The vehicle’s owner’s manual and safety stickers, which were admitted into evidence, recommended drivers be at least 16 years old with a driver’s license, as well as the use of helmets and seatbelts for all occupants. In this case, seatbelts and safety equipment were not used by the driver or its five minor passengers in a vehicle designed for two. However, the owner’s minor daughter had extensive experience operating these types of vehicles. The owner also testified that he was supervising the activity at a nearby fence.
During court proceedings, Count I stated a claim for negligent operation of a UTV by the minor driver. The second count was for negligent supervision, and Count III for past and future medical expenses.
Later in the day after the accident, the Plaintiff was taken to a hospital and was diagnosed with a concussion / traumatic brain injury. She followed up with a children’s hospital and treated in the concussion clinic for 11 months for a “significant brain injury.” The Plaintiff was discharged when her treating physician determined the concussion had resolved. She later sought psychological counseling for a mood disorder that the parents related to the accident, including drastic changes in personality, memory loss and headache. After a long gap in treatment, Plaintiff’s counsel retained neurology, radiology, and biomechanical experts that opined the Plaintiff suffered a permanent traumatic brain injury. Over a Daubert objection, the court allowed the Plaintiff to introduce brain volumetric analysis via NeuroQuant that showed several areas of her brain were in the 1-5 percentile indicative of severe atrophy. Radiology imaging also suggested an iron deposit may have been left over from a traumatic brain bleed. The biomechanical expert equated the impact to being hit by a baseball going 35 – 50+ mph without a helmet. As a result, the Plaintiff sought $4.9 million in total economic and non-economic damages.
Wicker Smith retained medical experts including a neuro-radiologist and neuropsychologist who testified that while Plaintiff did incur a concussion, it was not a permanent condition. The defense also introduced social media videos to contradict Plaintiff’s claim for damages. After 6 days at trial, the jury returned a defense verdict in approximately 2 hours. Post-trial motions, including Defendant’s Motion for Attorney Fees and Costs, are pending.