Another Slip-and-Fall Plaintiff Leaves The Courthouse Empty-Handed

One hears a lot of talk these days about the need for tort reform in America. In particular, many businesspeople are concerned about “runaway” jury verdicts, awarding inordinately large sums of money to persons injured on commercial premises. Such awards—sometimes rendered primarily out of sympathy for the injured person or his family—can potentially put a small company out of business, or at a minimum result in higher insurance premiums. 

So far, there is little evidence to suggest that there is a runaway jury problem on Guam. In fact, there have been very few tort verdicts rendered here at all during the past few years. The vast majority of such cases settle. Significantly, the few cases that have gone to a jury have generally resulted in either a defense verdict or an exceedingly modest award for the injured plaintiff. This is partly due to Guam’s comparative negligence law, which does not allow plaintiffs to recover for their injuries unless they demonstrate that their own negligence was less than that of the defendant they are suing. 

A 2009 Guam Supreme Court Opinion confirms the impression that Guam jurors are generally skeptical of negligence claims and that they are hesitant to hand down large verdicts without good reason.In that case, entitled Fenwick v. Watabe Guam Inc., the jury awarded an injured slip-and-fall plaintiff nothing. Fenwick illustrates the observation that Guam jurors have been less than generous to injured plaintiffs and will carefully scrutinize the plaintiff’s own conduct before awarding any money.

In the Fenwick case, Plaintiffs Joshua W. Fenwick and Erline C. Fenwick brought a negligence action to recover damages for personal injuries sustained by Mr. Fenwick while at the underground parking area of the Pacific Place Building, in Tumon. Fenwick was employed for almost a month as a driver for Watabe Weddings, whose office is located in the building. Fenwick sustained serious injuries, requiring back surgery, when he came into contact with a handicapped parking sign and fell on his back and onto the concrete floor. 

On the date of the accident, back in 2003, Fenwick exited the building to his car parked in the underground parking lot, and found that he could not pass between parking stalls 1 and 2 because company vans were parked so closely together that their mirrors created a barrier. He then chose to pass between handicapped parking stalls 2 and 3, where his injury was sustained. The Fenwicks argued that the placement and design of the handicapped parking signs failed to comply with Guam law because the signs were not placed in the center of the parking stalls, had pointed sharp edges, and were placed too low. The Fenwicks also complained that Mr. Fenwick was not able to adequately see the sign because of inadequate lighting in the parking area.

Following a nine-day jury trial, the jury determined, after deliberating only one hour, that two of the defendants were negligent. However, the jury further found that their negligence was not the proximate and legal cause of Mr. Fenwick’s injuries. Essentially, the jury concluded that the accident was Fenwick’s own fault.

The Fenwicks appealed, on various technical grounds, claiming that the jury was improperly instructed by the judge and certain evidence was improperly excluded. However, the Guam Supreme Court affirmed the judgment, finding that any errors would not have altered the outcome of the trial.

The court noted that Mr. Fenwick admitted seeing the handicapped parking sign “at least a hundred times,” and also admitted that there were alternative paths he could have taken that would have avoided impacting the sign. The court also noted that the evidence from expert and percipient witnesses was inconsistent, and that there was plenty of room for the jury to reach the conclusion that placement of the sign or lack of lighting were not the true proximate or legal causes of the accident.

The good news for Guam business owners and insurers is that, unlike in some parts of the country, Guam jurors have shown restraint and caution in addressing premises-liability claims. Jurors will not automatically assume that minor or technical failures to comply with regulations--such as the sign regulation addressed in Fenwick—justify an award of damages. 

In view of Fenwick and other recent cases, injured persons—and their lawyers—seeking to get rich off of such claims have good reason to think twice before taking their cases to a Superior Court of Guam jury.

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