Seven Month; Four Cases and Huge Verdicts - The Trial Lawyer, Summer 2003


Shropshire v. City of Walnut Creek - Contra Costa County Superior Court, Civil Action No. 01-02541

Plaintiff's Attorneys: William B. Smith and Robert J. Waldsmith of Abramson & Smith (415) 421-7995

Defense Attorneys: William H. Staples of Archer Norris

Diving Accident - Dangerous Condition of Public Property

Plaintiff Scott Shropshire (U.C. Davis diver), age 20, was diving as a guest of the Diablo Divers (a diving club) at the dive pool at the Clark Memorial Swim Center, owned and operated by the defendant City of Walnut Creek. At the time, defendant City of Walnut Creek had concurrently rented water time in the dive pool to 2 private clubs, the Diablo Divers and the Walnut Creek Aquanuts, a synchronized swimming club. During a 3-hour period each day in the summer, the 2 clubs shared the 81-foot long and 40-foot wide dive pool without any physical divider between the 2 inconsistent activities. The shared use arrangement of the dive pool had existed 15 to 17 years prior to the accident without any diver/swimmer collisions although swimmers, divers, and coaches who testified at trial each acknowledged an awareness of a few "close calls" over the years, where divers had just missed colliding with synchronized swimmers. The evidence at trial established that the City's dive pool was the only one in the world that allowed divers and the synchronized swimmers to share use without any means of physical separation between the two activities and also allowed synchronized swimmers to swim into the diving area during the diving practice. The collision occurred when the synchronized swimmer who had been swimming a cool down lap left her position along the wall under the three-meter board and swam directly into the board's landing area. She did this at the time Mr. Shropshire left the three-meter boards for his dive. Tragically, his head hit her right buttocks area, resulting immediate C-4 quadriplegia.

Injuries and Damages: For plaintiff, C-4 quadriplegia. He suffered double-locked facets with C-4 being locked over C-5 causing spinal cord necrosis at that level. Plaintiff's economic loss consisted of $1,064,102 for passed medical bills, $1, 948,380 for loss of earning capacity, and the range of $7,807,932 to $16,292,604 for feature medical needs, most of which represents the cost of 24 hour attendant care.

Settlement's Details: Plaintiff served C.C.P. §998 offer in the amount of $15,999,999. The City offered a total of $12,000,000 in combination with the other defendants.

Verdict for Plaintiff: The verdict for plaintiff was $27,750,000, consisting of $16, 500,000 for economic damages and $11,250,000 for noneconomic damages. The jury assessed fault 60% to the City, 20% to the synchronized swimmer, and 10% to each diving club. The jury found no comparative fault on the part of Mr. Shropshire.

Comment: One significant question confronting plaintiffs' trial counsel before trial was how concisely and persuasively present a large amount of evidence. Their solution - a multimedia presentation intentionally patterned after a Dateline or 60 Minutes investigative report because counsel believed that the jury would be used to receiving information in that manner. Every one of plaintiffs' nearly two hundred trial exhibits was presented electronically, with particular focus on showing various computer-generated diagrams depicting various configurations of the dive pool and the pool facility, photographs of the pool from various perspectives, and photographs and video of the plaintiff, both before and after he was injured. This method of presentation proved so effective that counsel opted not to show "day in the life" video; instead, they used short (5-15 seconds) video clips during the direct examination of plaintiff, and the experts. This allowed the witnesses to talk about plaintiff in more detail and gave the video clips a great deal more context.

The electronic presentation of evidence also enhanced and reinforced impeachment evidence. It is an extremely powerful moment when the jury sees the witness contradict himself or herself via an adjacent video monitor.

Finally, plaintiff's presentation contrasted sharply by the presentation by the defense, which involved shuffling corkboards back and forth and publishing hardcopies of documents to the jury. In the end, the jury looked to plaintiff for the evidence not only because they had become accustomed to receiving it in an electronic fashion, but also because plaintiff's evidence was more creditable due in part to the seamless way it was presented.

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