May 24, 2012 | Sean Breen
Howry Breen & Herman lawyer uses expert video reconstruction to secure No. 1 Premises Liability verdict in Texas.
At first glance, video footage that recorded 23-year-old musician Jordan VanDusen’s diving accident at an apartment complex swimming pool appeared to indicate the property owner had little or no responsibility for VanDusen’s life-changing injuries when he dove into a “no diving” pool.
Recorded on a hand-held video camera by a friend, the video shows young adults carousing around a pool in the courtyard of an Austin apartment complex before VanDusen dives into the pool. VanDusen was rendered a quadriplegic with very limited use of his arms when he struck the bottom of the pool, which had a water level that had fallen almost two feet below safe standards. Tests later revealed that VanDusen was legally intoxicated at the time of his injury.
While the video seemed to illustrate an open-and-shut case to the untrained eye, it was just the start of work for trial lawyer Sean Breen of Austin-based Howry Breen & Herman. Howry Breen & Herman enlisted a team of diving experts, physicists and animation professionals to analyze the video. As they converted the raw video into a sophisticated series of animations that, in conjunction with measurement and scaling of the pool, dissected the dive from different angles and vantage points, the truth began to emerge. The analysis revealed that the young man dove into the pool at a safe angle and that he would have suffered no injuries at all if the water had been maintained at a safe level, which is required by both state and municipal law.
“What we found in this analysis and what we showed to jurors in Jordan’s trial was very telling,” Breen says. “Jurors were able to see that Jordan’s dive into the water that night was not reckless at all — it was actually a dive that the Complex knew many kids were doing and that would have resulted in no injury whatsoever if only the property owner had adequately serviced the pool and maintained a safe level of water in it.”
In fact, a security guard had noticed the low level before the accident and sent an emergency page to the 24 hour maintenance department, but the page went unanswered and the pool remained open in violation of the law.
With the property owner unwilling to take responsibility for its role in causing Jordan’s injuries, and its insurance company making lowball settlement offers, Breen and the trial team proceeded to trial. Jurors agreed that the property owner was 51 percent responsible for the injuries and awarded $12.4 million in damages. Jurors indicated that the animation and expert analysis of the dive played an important role in their deliberations. The $12.4 million dollar jury verdict was the top premises liability verdict in Texas and the 16th largest verdict overall, according to Texas Lawyer.
“We worked very hard for this verdict,” Breen says. “We said all along that Jordan bore some responsibility for his injuries. All we asked was that the property owner accept responsibility as well. Thankfully, we were able to use the video and animations to tell the true story of what happened that night and the jury did the rest.”