Timothy J. Lippert of Long Beach's Demler, Armstrong & Rowland won a defense verdict in a premises liability case. Komada v. Scrivens, YC038366 (L.A. Super. Ct., verdict Sept. 19, 2001).

FACTS

According to the defense attorney, on Aug. 29, 1999, the plaintiff, Kim Komada, attended a family get-together at the Rancho Palos Verdes home of her relative, Mark Scrivens.

Scrivens was using a pickup truck to back his boat up the steep driveway. Komada, 43, stood on the stairway alongside the driveway. The stairway had no handrail.

The plaintiff, wearing slip-on beach sandals, tried to help Scrivens by stepping onto the truck's rear bumper to add more weight and improve the vehicle's traction.

She fell and broke her ankle.

CONTENTIONS

π - The plaintiff fell because the concrete steps were slippery and in poor condition. Moreover, the building code required the stairway to have a handrail, which was missing. The rail would have prevented the injury.

Δ - The plaintiff intentionally stepped off the stairway, and a handrail only prevents accidental falls, so its absence is irrelevant. The plaintiff fell when her sandal twisted onto the side of her foot.

‘JUST ME BEING STUPID’

Defense attorney Timothy J. Lippert of Long Beach's Demler, Armstrong & Rowland says he got his hands on a “striking” piece of evidence with which to impeach the plaintiff.

Two days after the incident, the plaintiff called Scrivens' father's home to speak with her 14-year-old niece.

The father had a new answering machine that he was using to listen to telephone callers before picking up the handset. The plaintiff's call triggered the machine to record. Komada had begun leaving a spoken message on the recording tape when the niece picked up the receiver.

Without either Komada's or her niece's knowledge, the answering machine continued to record several minutes of the plaintiff's conversation. According to Lippert's account of the recording's contents, Komada allegedly stated that the accident happened because her “stupid thongs twisted sideways” and that the accident “didn't have nothing to do with anyone there ... it was just me being stupid.”

The plaintiff's attorney, Christopher Real of Torrance, denies that the recording undermined his client's case. If a handrail had been installed, she would not have slipped, Real says.

The father kept the tape because he suspected that Komada might sue his son.

The plaintiff admitted making the statements, but she claimed that she wasn't thinking clearly at the time of the phone call because she was under the influence of pain medication as a result of her injury.

HANDRAIL OFFERS NO LEGAL SUPPORT

Although a handrail should have been present, Lippert argued that wasn't relevant in this case because the plaintiff intentionally stepped off the stairway.

“Handrails are primarily intended to prevent accidental movement,” Lippert says. “A handrail would not necessarily have made a difference.”

Real concedes that the jury considered his client's conduct foolish and dangerous. That's why she lost the case, he says