Kevin Warnock

Today, January 19, 2012, I deliberated with 11 other jurors on the civil trial of Barbara McLemore versus Aspen South Hills Apartments Company.

See the case as it appeared on the official San Francisco Superior Court Calendar January 6, 2012. Immediately below is a screen shot of how the case appears on the San Francisco Superior Court Calendar, January 6, 2012. The case number is CGC09486379. [Modifications to this paragraph made May 20, 2012 in response to a request from a reader to simply excerpt the relevant section from the 114 page calendar.]

I am heartbroken because I voted for the plaintiff McLemore, but 10 of the other jurors voted for the defendant, Aspen South Hills Apartments Company.

These 10 votes for the defendant means McLemore lost her case and went home without being awarded a penny.

I felt the plaintiff’s attorney Oscar R. Roesler of the Law Offices of Arnold Laub proved his case with 95% certainty. The law requires that he prove his case by any amount over 50%, so I voted for a decisive win. The other juror that voted with me estimated her vote to be 51% certain. One juror characterized her vote as 51% for the defense. Two more jurors characterized their vote as 80-90% for the defense. The remaining 7 jurors characterized their vote as ‘far above 50% for the defense’ without providing a number. This means the plaintiff lost her case by a wide margin.

While I did not form an opinion about the case until in the jury room, I had a sense I would be voting for the plaintiff almost from the beginning. The case was so compelling I easily understand why Roesler took the case, which had to have been on contingency as the plaintiff is of limited means. Aspen South Hills Apartments Company serves very low income and low income tenants, and residents have to qualify according to Housing and Urban Development Section 8 guidelines, which restrict the income tenants may have to continue their residency.

Here’s a summary of the case, in my words:

On March 25, 2007, Barbara McLemore left her apartment and began to walk the most direct route to her vehicle in the parking lot of her apartment complex.

The most direct route included about 8 steps over a 6 inch high concrete ramp leading from the parking lot to an elevated platform where one of the two large garbage dumpsters for her 82 unit housing complex was placed. Between the sidewalk curb and the ramp was a gutter 16 inches in width. McLemore stepped off the curb and placed one foot into this space. When she lifted that foot out of this gutter area the front of her foot hit the edge of the trash ramp and she fell forward on her hands and knees.

McLemore fractured her right knee cap and was in instant pain. She also injured her neck. She had previously had surgery in a different area of her neck in 1993. She had not had trouble with her neck since a successful 1993 operation. The doctor that treated her for her 2007 fall testified the fall caused this new neck trouble.

Dr. Brian Andrews, Chairman of the Department of Neurosciences at California Pacific Medical Center performed two neck surgeries, fusing some bones in her neck together.

The surgeries and related treatment cost USD $109,000, however, McLemore now has only about half the flexibility in her neck that she had before the recent surgeries. Sadly, she is still in pain, even though she can function. She has to take prescription pain medication every day. She said her pain without medication is a 6 on a scale of 10.

Although it wasn’t stated at trial, medical bills I reviewed as evidence showed no charge for her treatments, and I suspect all or most of the bills were covered by McLemore’s health insurance she likely has by virtue of providing 25 years of service working for the City of San Francisco before she retired. She is also on Social Security, and thus I believe should be eligible for Medicaid.

I certainly hope Barbara McLemore isn’t saddled with a mountain of medical debt.

The doctor that testified for the plaintiff was very credible. He was so well regarded that the medical doctor for the defense had the plaintiff’s doctor perform intense back surgery on him when he needed it. The expert surgeon testifying for the defense had to stop performing surgery in 2003 due to back troubles, and now sees patients without performing surgery and provides expert witness testimony as he did at this trial.

I could tell the sidewalk / gutter / trash ramp fall area was dangerous within one second of seeing a photograph of the site as it was at the time of the fall. I polled the other jurors during deliberations, and all 11 of them said they too conclusively believe that area is dangerous. One might think that this would result in a finding for the plaintiff, but, sadly, other issues muddied the picture to the plaintiff’s detriment.

The defense did an outstanding job, I learned. The defendant’s lawyer prepared a pivotal motion which the judge, the honorable Wallace P. Douglass granted. That result of that motion said that the jury could not be asked simply if the defendant was negligent by its creating the dangerous ramp area.

If the jury could have found that defendant was negligent by its creating the dangerous ramp area, the plaintiff may have won since 100% of the jurors agreed the fall area was dangerous.

The jury was asked instead to decide if the ramp area violated building codes and if so, if that violation was a substantial factor in bringing about the harm to McLemore.

Ten of the 12 jurors said the ramp area did not violate then applicable building codes. Since those were the only two questions we had to answer, and the asking of the second was dependent on a yes answer to the first one, by answering as they did, the case was decided in favor of the defendant, in spite of every juror believing the ramp area was dangerous.

This is why I am heartbroken.

I don’t feel that justice was served.

I feel the defendant won because the judge relied on precedent that said he could not simply ask the jury if we felt the defendant was negligent by its constructing the trash ramp as it did. The judge told the jury after the case that he did not agree with the precedents and did not like having to constrain the jury as he had to. He seemed to recognize the dramatic significance of his motion ruling, as he volunteered this dramatic information without being asked.

I also feel the defendant won because the judge told the jurors after the case was over that he instructed Roesler and Hourihan that their experts could not interpret the building codes for the jury. Yes, that’s right, the experts being paid some USD $500 per hour could not interpret building codes and explain what they meant in everyday terms jurors could be expected to grasp. Lonnie Haughton, the building code expert for the plaintiff testified he is a Master Code Professional, one of only fewer than 800 such highly qualified masters in the entire United States of America. But that expert’s testimony was constrained, and he could not interpret what these vexing codes mean.

This is simply craziness to me. Crazy, crazy and crazy. This trial easily cost over USD $100,000 to mount, and the jurors could not learn from building code experts about matters at the core of the case.

McLemore was cheated out of a sum of money that could have dramatically improved her life. She has a life expectancy of about 27 more years, and she could have purchased an immediate annuity with any award to give her extra income for life.

In a moment, I will show you the vague, short and imprecise code language the judge instead required the jurors to interpret on their own, with no outside help, and with no real qualifications to do so.

This case was decided based on jurors’ interpretation of just three sentences in the California State Building Code.

The first sentence is from Section 2-701, which reads:

“Site development and grading shall be designed to provide access to primary entrances and access to normal paths of travel and where necessary to provide access shall incorporate pedestrian ramps, curb ramps, etc.”

The second sentence is from Section 2-3323, which reads:

“Walks and sidewalks subject to these regulations shall have a continuous surface, not interrupted by steps or by abrubt changes in level exceeding 1/2 inch.”

The third sentence, also from Section 2-3323, reads:

“A walk is a surfaced pedestrian way not located contiguous to a street used by the public.”

My reading of these three sentences makes me believe that the fall area is ‘a normal path of travel,’ which is a phrase from the first sentence. The residents of 82 apartment units dispose of their trash in the large dumpster served by the ramp in front of it. That makes the dumpster a magnet for hundreds of visits by residents every week. People get used to walking the most direct route possible to the dumpster, which includes passing over the 16 inch wide gutter, either by stepping over it as I would do, or stepping into it, as I presume people with a shorter step would do.

Right on the opposite side of the ramp is the parking lot for dozens of cars. Residents trained to walk on that ramp while dumping their trash are so likely to also walk on the ramp on the way to their cars that I believe the fall area quickly and perpetually became ‘a normal path of travel.’

McLemore’s dedicated assigned non-handicapped parking spot was right across from the dumpster ramp, we were told, so McLemore was behaving as I would expect her to behave by walking across the variable zero to six inch high ramp. Defense lawyer Hourihan said McLemore should have walked around the ramp, not over it, and because she didn’t she is at fault and is owed nothing. This is cold and unfair, and the defense should not have prevailed.

I told the jury that I believe that if a video camera had been recording activity at the incident area that I was certain that many, many residents walked across the ramp to the parking lot, as it was the shortest path to some of the parking spots. One of the jurors then asked me if I jaywalked does that eliminate my right to collect damages if someone hits me. I conceded that I think it does. He suggested this is the same thing here — plaintiff essentially ‘jaywalked’ across the ramp and anything bad that happened to her as a result was her fault and sole responsibility.

I strongly disagree with this interpretation. The three sentences I quoted above from the building code I think require that ‘normal paths of travel’ be safe to traverse by normally acting pedestrians exercising non extraordinary care in where they step.

I think the jury read these sentences so technically precisely that they cheated a woman in need of compensation for her medical bills, pain and suffering.

Here is how they explained their thinking which led them to deny any money to the plaintiff:

• They said the fall area by the ramp is not a normal path of travel.
• They said the fall area is not a ‘walk’ because it is ‘contiguous to a street used by the public.’
• They said the area of the fall is not a sidewalk either.

The ramp is contiguous to a street used by the public in that the ramp is actually in the street, with street paving on all sides, making the ramp and dumpster an island surrounded by street asphalt.

So the thinking of the other jurors is that the ramp area, no doubt used hourly during waking hours by the approximately 240 residents of the 82 apartments, is not a walk, a sidewalk or a normal path of travel. Because of this status, nobody should have been crossing over it at all, and anybody that did and got hurt gave up any right to be compensated. I find this to be 180 degrees opposite to my much more generous reading of the building code sentences provided in the jury instructions. I feel that had I read the rest of the building code, hundreds of pages, that I would be even more resolute in my feeling that only injustice today was served.

I think the code writers did not intend for such a grave outcome to result from such a nitpicking reading of three sentences. The whole spirit of building codes is to keep people safe, even if they venture off the ideal walking path the designers intend for pedestrians. Only after the trial was over were the jurors told the offending trash ramp has been removed entirely from the apartment complex. I did not learn if a code inspector forced the removal or if there was some other reason, such as the building’s insurer, Farmers Insurance Exchange, deciding to remove it simply in response to McLemore’s lawsuit against the property.

I just performed a Google Maps search for the property address, and discovered that not only has the dumpster ramp been removed, but the dumpster has been relocated, and there is no platform for the dumpster, and thus no ramp serving it. The dumpsters, now actually two of them, sit directly on the parking lot surface. They are in the upper right corner of the lot, nowhere near where the dumpster was when McLemore tripped on its ramp.

The photograph above that illustrates this post is a screen capture from Google Maps earlier this evening. There is a small white arrow in the picture where McLemore fell.

I feel so bad for McLemore. I tried so hard to turn things around for her. I made the arguments I detailed in this post to the other jurors, but I did not change the vote of even one juror, I am sad to report. When I called the first vote a few minutes after I was elected ‘presiding juror’ (in earlier years this position was entitled ‘foreman’), the vote was 1 for McLemore (my vote), 2 undecided and 9 for the apartment complex, the defendant. However, on questioning, one of the undecided jurors was leaning towards voting for the defense. Only two jurors were ever really for the plaintiff, and it never improved during the rest of the two hours or so that we spent in the jury room. I called a vote twice more during the proceedings, and final vote was 10 for defendant and 2 for plaintiff. I voted for plaintiff.

I regretfully signed and dated the voting form provided by the court and passed my signed copy around the room for all to inspect and check. It was approved by all in the room. I then used the sheriff’s deputy telephone hotline to ask Bailiff Mr. Rafael Cabrera to escort the jury members back to the court room. Cabrera didn’t return, but one of his unnamed colleagues escorted the jury members through the judge’s door to the court room, which was numbered room 504.

I never wrote down the last names of the other jurors, but I did write down the first name of the jurors. They were:

• Rob
• Sheila
• Neula
• Marianne
• Helena
• Chris
• Guy
• Tony
• Tamra
• Dan
• Mohammed

The jurors were bright, engaged, thoughtful and had great memories. I was impressed with how well the memory of the group agreed with my memory. I agreed with many of the jurors on a number of issues, such as which side had better experts and which closing arguments were more powerful. I cannot find fault with the passion and earnestness of the jurors — they were all fully present, thinking and working in the jury room. Thank goodness one of the jurors was dismissed part way through the case, apparently for sleeping and using his smart phone during the trial. I would not have wanted that juror in the deliberations, because nobody knows how much he heard or didn’t hear.

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To Barbara McLemore, I offer these remarks:

I found you to be a highly credible and impressive person. I read your handwritten incident report of the accident, and your handwriting is better than mine. You were precise, well spoken, detailed and sensitive to the politics of going on the record with something so caustic as a dramatic fall. I have a feeling you were an outstanding employee for the City and County of San Francisco before your retirement.

While you didn’t press your point against Aspen South Hills Apartments by extracting money out of them that you may spend on yourself, you did extract a lot of money out of their insurance company, which had to defend against your lawsuit. I don’t see how Farmers Insurance Exchange spent less than USD $100,000 to defend this case, given the high expense for the expert testimony and for the impressive legal work demonstrated by its in house counsel, John D. Hourihan.

You also made a lot of people squirm, including Ella Henderson, Michele Evans and South Hills Apartments Company owner Sanford Gallanter.

It’s true none of them would have likely suffered financially had you won, it was evident to me that they disliked being in court, and you may take small comfort that you inconvenienced them more than a little.

This is not revenge.

This inconvenience does not make up for your pain and aggravation and suffering.

But still, I believe you can take small comfort that you were seriously paid attention to for a long while.

None of the participants will ever forget you or your name.

I am sure I will never forget your name. I know this because I served on jury over ten years ago and I still remember the participants and the case well, and that case ended very well for the plaintiff. I was happy for him, not heartbroken, as I am for you. I will remember you even longer due to this heartbreak. I also got to meet you, where I did not meet the plaintiff in the earlier case.

Even though I don’t know you, I feel like I learned a lot about you at this trial. You strike me as a profoundly good person and woman.

I liked your friend Gary, and he has a nice and warm smile. I hope you stay friends with him and that he comforts you during this particularly rough time in your life.

I was extremely impressed with your daughter Ashley McLemore. You have so much to be proud of that you raised a daughter that graduated from University of California at Davis. It’s harder than ever to be admitted to the University of California, I’ve read. Please give my regards to  your daughter and also give her my best wishes for a happy and successful life, whatever career path she should chose.

I could see you are a proud woman with integrity and honor.

I see you as a community leader, evidenced by your forming the tenants’ association you once led at your complex.

I was impressed you came out of retirement to work part time at your local food bank.

You held your head high with poise and dignity when the unfavorable verdict was read by court clerk Mr. Feinberg. I can not imagine the agony you must have been feeling inside, after half of decade of constant physical pain but for medication, and over three years of legal battle, which takes an emotional toll more extreme than most people appreciate.

I went through a relatively simple divorce last year, which is technically a lawsuit, and it was excruciating.

What you have just gone through I suspect was 100 times worse.

That you were able to shake my hand for a solid minute and look me in the eye without crying was astonishing.

I would have cried had I been in your shoes. I am crying as I write this sentence to you now.

I hope that you are happy that I wrote this blog post. I place a lot of outbound website url links in my blog posts. If you would like me to remove some of the links, or make other changes, please write to me via a comment to this post and I will likely accommodate your requests. I don’t normally grant such requests, but this is a special circumstance because while the trial was public and open to all, this case is still a special and sensitive part of your life.

I mean no disrespect by writing so vividly and publically about the case.

Rather, I intend to show you much respect by my writing this blog post.

It is my hope that you will treasure this post, print it out and hold on to it in your family history. I hope you will show it to your friends and neighbors as proof you were not unwise to sue over your injuries, and that your case was believed and accepted almost 100% by one of the jurors.

I wish you all the best in your life. I suspect you are among friends in your apartment complex, and had you won you probably would have been forced to move due to the Section 8 rules, so in the final reflection maybe not winning will keep you closer to your friends, which I have found are more important than money.

You touched me this past 8 days. I am honored that I have shared in your life.

Kevin Laurence Warnock
San Francisco, California USA
January 19, 2012