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Top Texas Verdicts of 2011

May 28, 2012 | Articles, Jay Paul Warren, Sean Breen

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Man, 23, dove into shallow pool
at apartment and broke his neck.

Verdict: (P) $12,393,542.00

Case Type: Swimming Pool, Recreation

-Swimming Pool, Premises Liability –

Apartment, Negligence – Negligence Per Se

Case: Jordan VanDusen v. Aspen Square Management Na Longhorn Bentley LLC, d/b/a Longhorn Landing Apartments, No. D-1-GN-09-001608

Venue: Travis County District Court, 53rd, TX

Judge: Orlinda Naranjo

Date: 01-24-2011

PLAINTIFF(S) Attorney:

  • Sean Breen; Howry, Breen & Herman; Austin, TX for Jordan VanDusen
  • Jay Warren; Howry Breen & Herman; Austin, TX for Jordan VanDusen

Expert:

  • David Felton Ph.D.; Clinical Psychology; Austin, TX called by: Sean Breen, Jay Warren
  • Mary Gonzales M.D.; Physical Medicine; Austin, TX called by: Sean Breen, Jay Warren
  • T. Harrell Ph.D.; Life Care Planning; Austin, TX called by: Sean Breen, Jay Warren
  • John Trapani Ph.D.; Economics; New Orleans, LA called by: Sean Breen, Jay Warren
  • Kim Tyson; Aquatics; Pflugerville, TX called by: Sean Breen, Jay Warren
  • Richard Hinrichs Ph.D.; Diving; Phoenix, AZ called by: Sean Breen, Jay Warren
  • Christopher Lakso; Animation/Computer Animation; Phoenix, AZ called by: Sean Breen, Jay Warren

DEFENDANT(S) Attorney:

  • Jeff Ray; Ray Valdez, McChristian & Jeans; El Paso, TX for Longhorn Bentley LLC, Aspen Square Management

Expert:

  • Farhad Madani; Pools; Austin, TX called by: Jeff Ray
  • Robert Bux M.D.; Toxicology; Colorado Springs, CO called by: Jeff Ray
  • Stephen Horner Ph.D.; Economics; Corpus Christi, TX called by: Jeff Ray
  • Donna Johnson; Rehabilitation Counseling; Corpus Christi, TX called by: Jeff Ray
  • James McElhaney Ph.D., P.E.; Biomechanics; Durham, NC called by: Jeff Ray
  • Roger Nightingale Ph.D.; Biomechanical; Durham, NC called by: Jeff Ray
  • John Reid Ph.D.; Psychology/Counseling; San Antonio, TX called by: Jeff Ray
  • Richard Senelick M.D.; Physical Rehabilitation; San Antonio, TX called by: Jeff Ray

Insurer: Lexington Insurance Co. for both defendants (policy limit $1 million) St.Paul Fire and Marine Insurance Company for both defendants (policy limit $25 million) American International Specialty Lines Insurance Co. for both defendants (policy limit $25 million)

Facts: On the night of June 11, 2005, plaintiff Jordan VanDusen, 23, a computer consultant and musician, was at a party at Longhorn Landing Apartments, an Austin apartment complex managed by Aspen Square Management Austin. VanDusen was a former resident of the complex, which caters to college students. He and other partygoers were drinking. At around 2 a.m., VanDusen and some friends entered one of the complex’s two swimming pool areas, which were open 24 hours a day, seven days a week. VanDusen attempted a shallow “racing dive” into the pool, but the water level was 18 inches low, resulting in a steeper angle of entry. He hit his head on the bottom and broke his neck. He is paralyzed. When filled to normal level, the pool was between 3 feet, 6 inches deep and 4 feet, 6 inches deep. It was low that  night because of a pool equipment problem. The complex had added water to the pool on June 10. At about 10 p.m. on June 11, security guard Amanda Walker came on duty and noticed that the water level was low. The apartment manager was still on site at this time. At about 1:25 a.m., Walker and another guard walked by the pool again and noted that it was low, and alerted a supervisor. The supervisor called all emergency contacts for the management company, and according to the plaintiff, no one responded. Several Aspen Square employees lived at the complex. The property owner was Longhorn Bentley. VanDusen sued Aspen Square and Longhorn Bentley for premises liability, arguing that, by common law and statute, the pool should have been closed because of the water level. VanDusen had been at the pool more than a hundred times and safely performed many dives there, as had many others, including employees of the complex. VanDusen acknowledged a momentary lapse in judgment, that he should not have dived into the pool that night, and that he regrets not noticing the water level was low before diving.  Aspen Square Management, which was operating 80 properties nationwide, had no written risk management policy or written safety policies for its pools, its most dangerous amenity.  According to the plaintiff Longhorn Landing allowed and encourage drinking in and around the pool, and its pool safety man was unaware of applicable laws and codes. VanDusen also argued that the complex’s local emergency call system and personnel were inadequate and that, the weekend before the incident, an on-call worker ignored three emergency calls. The security guards did not have authority to use the locks that were restring on the gates or the “pool closed” signs that were in a nearby shed, the plaintiff argued. According to the plaintiff, no one employed by the complex knew of the incident, and the pool remained open until Monday, June 13. Plaintiffs’ counsel said they argued for 7f5% fault on defendants. Defense counsel said Plaintiffs’ counsel argued for 80 to 90 percent fault on defendants. The defendants denied the allegations and argued that Jordan was at fault. They noted that, about 45 minutes after the incident, Jordan’s blood alcohol level was .09 and that he was aware of the numerous, conspicuous “no diving” signs around the pool. Also, according to the defense, an employee did respond to a 1:25 a.m. emergency page, though not till after VanDusen’s injury. Plaintiff’s counsel said the defendants were never able to identify the employee. The defendants were treated as a single entity (“Aspen”) in the jury charge. The jury questions were: 1. Whether VanDusen was negligent; 2. Whether Aspen was negligent per se for failing to maintain the water at the required level, failing to maintain pool equipment as required, failing to provide the required lighting, or failing to close the pool if required; 3. Whether Aspen was otherwise negligent; 4A. Comparative responsibility between Aspen for negligence per se only and VanDusen; 4B. Comparative responsibility between Aspen for other negligence only and VanDusen; 5. Damages

Injury: VanDusen broke his neck and is permanently paralyzed from the neck down. He was hospitalized from June 12 to July 5 and was immediately diagnosed as a quadriplegic. Initial findings showed C4 fracture with C4-onC5 subluxation. He underwent a fusion of C4 and C5 and returned to the intensive care unit. He then underwent a tracheotomy tube placement, PEG tub placement and several bronchoscopies. He was then transferred to The Institute for Research and Rehabilitation in Houston from July 5 to August 22 and underwent physical occupational, and speech therapies. He also attended the RAPS session for spinal chord education. At discharge, he was sitting for four hours twice a day at 80 degrees. When his insurance company dropped coverage, he transferred to a New York hospital and obtained Medicaid and Medicare benefits. He spent Aug. 22 to Sept. 23 at one New York hospital and Sept. 23 to Nov. 23 at Mount Sinai Medical Center. He experienced increasing episodes of autonomic dysreflexia, headaches, and severe pain. Bladder and bowel management was ongoing. He also developed a stage IV decubitus ulcer. VanDusen continued to be hospitalized off and on as needed for various medical complications relating to quadriplegia, including severe pain, decubitus ulcers, and respiratory illnesses. He requires round-the-clock care. At the time of the incident, his attorneys said, VanDusen was a successful musician, with a promising life ahead of him, and he was active, successful, ambitious, and engaged in building a productive future. He sought past and future medical bills, lost earning capacity, disfigurement, physical impairment, and pain and suffering, and he asked the jury for a total of $25,000,000, including $1.5 million in past medical. His attorneys reported that the life care plan was $10 million, and defense counsel reported that it was $11.3 million.

Verdict Information: The jury found the defendants negligent and, as to the water level alone, negligent per se. The jury also found VanDusen negligent. The first comparative fault question was answered 49 percent for the defendants negligence per se only, and 51 percent for VanDusen. The second comparative fault question was answered 51 percent for the defendants for other negligence only and 49 percent for VanDusen. The jury found damages of $12,393,542. As requested by the plaintiff’s attorneys, the court entered judgment against the defendants jointly and severally in the amount of $6,636,709.25, which is the sum of 51 percent of the damages and prejudgment interest. The defendants plan to appeal.

Jordan VanDusen $1,500,000 Personal Injury: Past Medical Cost $4,645,789 Personal Injury: Future Medical Cost $286,000 Personal Injury: Past Physical Impairment $1,714,000 Personal Injury: Future Physical Impairment $195,947 Personal Injury: Past Lost Eearning Capability $1,051,806 Personal Injury: Future Lost Earnings Capability $143,000 Personal Injury: Past Pain and Suffering $857,000 Personal Injury: Future Pain and Suffering $286,000 Personal Injury: Past Disfigurement $1,714,000 Personal Injury: Future Disfigurement

Editor’s Comments: This report is based on information that was provided by plaintiff’s counsel and defense counsel.

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