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Attractive Nuisance Cases (Childhood Injury Prevention)

attractive nuisance cases

Attractive Nuisance Cases (Childhood Injury Prevention)

Keeping children safe is always on parents’ minds. Anyone with children is, or should be, very aware of children’s curiosity and their inner nature to explore and learn new things.

 

Businesses Create Dangerous Conditions that Attract Children

Unfortunately, too often, businesses create situations that are very attractive to children. These types of scenarios involve things like conveyor belts, high mounds of dirt rock and sand, equipment at constructions sites, abandoned refrigerators or freezers, and adult-only fitness centers.

 

The Attractive Nuisance Doctrine Protects Children

The law of Attractive Nuisance protects children in many different types of situation. For example, imagine if a landowner kept an object on their property that attracted a child’s attention and the child was injured as a result of that object.

Even though the child is trespassing on the landowner’s property, the law of attractive nuisance protects the child because they aren’t able to appreciate the danger.

When companies have no choice but to create a dangerous hazard throughout their normal course of business, they must take precautions to prevent children from exposure to these dangerous situations.

When businesses fail to prevent children from exposure to dangerous hazards they are unable to appreciate, they have created a situation called an “Attractive Nuisance.”

 

Examples of different types of attractive nuisance in Florida include:

 

 

Attractive Nuisance Case Involving a Five-Year-Old Child

In the case of Idzi v. Hobbs, in 1966, the Florida Supreme Court held that a five-year-old child could not appreciate the danger of an open fire. When the child was severely burned, the court held the landowner responsible for the damages to the young child.

They found that the child could not fully appreciate the danger of fire and how seriously fire can injure humans. If something that attracts a child has a concealed dangerous object or is in a dangerous state, the attractive nuisance doctrine applies.

The courts decided the factors involved in the attractive nuisance doctrine should be considered in the light of the utility of maintaining the dangerous condition and the cost of eliminating the danger. Which means if the cost of prevention is low and the risk or danger of injury or death is high, then the landowner is expected to take reasonable steps to prevent an injury to a child.

 

Attractive Nuisance Case Involving Nine-Year-Old Child

The recent case of A.C. vs. Camden USA Properties involves a nine-year-old child who was a resident of Camden Apartments. Camden had a fitness center on the property. The fitness center was for adults only and access was limited by a lock on the door.

One day, construction workers for the Camden property propped open the fitness center door with a bucket of concrete or drywall compound. It was a hot summer day, so A.C. and his friend decided to go inside the fitness center to cool off and find a more comfortable place to play.

Inside the fitness center, the boys discovered a treadmill and some large yoga stretching balls. The boys turned on the treadmill and began throwing one of the yoga balls on the treadmill. When the ball struck the treadmill, it bounced back to the boys, and they would throw the ball back at the treadmill.

They were having fun and increased the treadmill velocity to full speed to continue bouncing the ball on the moving platform. Next, A.C. dropped the ball and the treadmill sucked the ball underneath itself. A.C. was afraid the ball or treadmill was going to break, so he reached under the treadmill to retrieve the ball. Unfortunately, the treadmill grabbed A.C.’s arm, broke his arm in three places, and caused severe burns and skin loss to his arm.

A.C.’s friend stopped the treadmill and helped him find his mother who took A.C. to Tampa General Hospital. This case was highly contested and the jury had to decide the following questions before they could decide if Camden had created an attractive nuisance that injured A.C.

 

Questions the jury was asked to determine whether an attractive nuisance was created by Camden:

 

 

The jury had to answer “Yes” to questions 1, 2, 3, and 5, and answer “No” question 4 in order for an attractive nuisance to be found. In this case, the jury found that Camden had created an attractive nuisance and awarded A.C. (through his mother) over 2 million dollars in compensation.

 

Closing Argument during Attractive Nuisance Trial

The following is the unedited closing argument of the case:

 

“CLOSING ARGUMENTS

POWELL: Good morning.

THE JURY: Good morning.

POWELL: In a moment you’re going to go back there to the jury deliberation room and you’re going to have three jobs. The first job is to fill out the verdict form that Judge Huey just showed you. The second job is to make sure that everyone back there follows the law. Follow the jury instructions that you’ve been given and just follows the law on every single aspect of it. And the third thing that you’re going to do is that you’re going to spend some time talking to each other about how you feel about each of the issues. And I want to talk to you a little bit about some of the things that you should discuss. And you’re going to talk about how you feel and all types of things are going to come up, and I’m going to suggest to you some things that you can say and share with each other when you go back there. Because, like, there’s a lot of issues to discuss, and one of them is, well, maybe he was smart enough to realize the risk of the gym. And if someone says that you can say to them, you have to keep in mind that this is a ten-year-old boy living in an apartment complex for some time and he has some awareness of what a treadmill can do to him, but he certainly is not aware of the danger of meddling with it and bouncing a ball on it and turning it on high speed. One of the issues you may hear is, you know, if someone says, well, there’s really nothing wrong with A.C., he only has a scar. Then you can remind them that, you know, the saying is, “A scar is always smaller on another man’s face.” This scar he has to carry with him every single day of his life. And he’s going through a period pretty soon now that he’s 14 years old as he goes through the teenage years to 18, college. You know, that’s a very tough time for boys growing up and dealing with some of the girlfriend thing and finding your place in life and your self-identity and you’re self-conscious. Those are critical times for him. And you need to think -well, think about that. He’s lucky that he doesn’t have a problem with his hand or his wrist or his elbow. Also remind them that writing is a little harder for him and he needs a little extra time, a little special accommodation from the teachers. And also as Dr. Murphy said, he does have pain when he palpates the arm and he has pain when he plays basketball a  little too hard. And that’s not something that’s normal that he should have to endure but for the negligence of the apartments. And someone may say, well, what did the apartment do wrong? What did Camden do wrong? Look at the overhead. I’m going to show you a map. This is in evidence. And I can tell you what Camden did wrong. This is a systems failure. This is a failure where an apartment complex — the contrast is very bad, can we fix this? This is a systems failure where — just remind everyone that they didn’t have any training. Poor Mr. Ruiz said, I had no idea, you know, there’s no training, there’s no procedures, there’s no manuals whatsoever. This is a 300-unit apartment, 360 families live here. What’s interesting is there’s a clubhouse and a welcome center over here, then over here they have the other pool and there’s the gym. And this is the lake where the boys were fishing. This is where A.C.’s arm was severely injured by the treadmill. And if someone says, well, it’s not really a big deal his arm injury, he just has to stay out of the sun. Remind them that staying out of the sun in Florida is difficult to do and it affects how we live our lives, if we like to go outside and play sports like football, basketball, gardening, riding bicycles. He has to stop and say, okay, I’ve got to make sure I have sunscreen on or I’ve got a long-sleeve shirt. It is a big deal. And it also affects the ability for him to obtain certain jobs later on in life. And we all heard from Dr. Shahnasarian about how he is going to have a diminished earning capacity. And that was totally unrebutted evidence. There’s no evidence from anyone else in this courtroom that said that’s not going to happen for him. You know and you’re going to probably — if someone says, well, A.C. knew not to go into the gym. That’s kind of true in a way because he certainly had instructions and knew he wasn’t supposed to go in there, his mom did the best that she could by keeping the key on her key chain so he couldn’t just pick it up and go by himself. But it’s like an analogy of, like, you know, don’t eat the cake, don’t eat the cake, and then Camden leaves the cake there. And you got two young boys, you know, they’re walking around and they’re looking for some air conditioning and say, wow, is that cake? I don’t think that we’re supposed to eat  it. Aww, no one’s looking, let’s go in and check it out, and unfortunately they walk in. And how did the door get left open? If someone says, well, what’s Camden supposed to do? They can’t be there all the time. Well, there’s a lot they could do; one, the evidence that we have in this case is that it was open or held open by a bucket, and we all know that there was construction going on. And you’ll see all the construction bills, they’ll be part of the case that you’ll be able to look at. There’ll be no witnesses to say when exactly the work was being done or when it wasn’t done, but when you go back there and someone says, well, how do we know when it was done? The invoices are all dated after the injury. Then you can ask yourself, well, why didn’t they bring in someone who said, we did it earlier, or we submitted the bill later or maybe they submitted the bill after the work was done. If someone goes back there and suggests that, hey, it’s Ms. Ramos’ fault, that’s to say — that’s outside of the box. Nowhere in this case has there been any discussions that it’s anyone’s fault except Camden’s. And you have to decide when you go through the verdict form whether all the elements about it, but that’s something that you can discuss.  And if someone else, well, you know what, A.C. wants to go to college. You know, that’s a good thing and we hope that he does go to college, but I want you to say, well, if someone says he’s going to go to college so he’s not going to have a loss of earning capacity, you’re going to say, well, you know, he is struggling in school, he was held back a year. The reality is he was given a lot of testing by Dr. Shahnasarian to measure his vocational ability and the school has already given him some special things to allow him to go a little slower. You know, he’s got a challenge with ADHD, Attention Deficit Hyper — Hyperactive-something. And you’re going to have — it’s one thing — if we can have the Elmo. This is a medical record that’s in evidence you’ll look at later in there. This was done two years before the unfortunate treadmill injury to him. But he’s having a hard time in school, not paying attention and that sort of thing. So, you know, we all hope that he will go to school, go to college and get a degree, but the chances of that happening are not likely. But, you know, then someone will say, well, you know what, this is some — who should bear the risk in this case? What risk should be borne by Camden?  What should they assume the responsibility for versus A.C.? If you find liability when you do, and we’re going to go through that, it’s going to be, okay, should he get the lower number or the higher number or the middle number, should we compromise? The evidence is the lowest number is about $93,000 and I’ll get to that later, and the high number you probably have a $300,000. If there’s someone who’s going to assume the risk, it shouldn’t be the young man who was allured into that gym to play with the equipment, it should be the company that failed to have in place any training, any procedures, any policies to say, hey, staff, we’ve got 300 families here, from little tiny kids, to smaller kids, to teenagers, to older adults, we’ve got to make sure that they’re not getting hurt, they’re not going into places they’re not supposed to be. And I think Mr. Ruiz was the guy who said, they asked him, “What are you going to do if you have an emergency or a dangerous condition that you can’t -you don’t know what to do? I’m going to call a vendor.” That’s really not an appropriate response to a dangerous condition. That’s unfortunately the level of training and guidance and management they  have on the property. If someone says, hey, the door has a closer, a lock and a spring, you remind them, that’s right, it does because we’re trying to keep children out of there. And you’ll hear Ms. Beyer say, well, we have a closer and a lock because we don’t want vandals in there and we don’t want people who don’t live here there. But she would never say — do you remember how hard it was to pull out of her, well, it might be a good idea to keep it locked to keep children out of there. Oh, no, no, no, no. And, you know, when you talk about that one of the jury instructions the Judge has read to you, and you’ll have it when you get back there, is the believability of the witness. And that’s an important thing because every witness that came in here had different things to say, different points of view of expert witnesses or lay witnesses. You know, Martha Beyer, her deposition took so long because it was like pulling teeth to get her to admit or discuss any circumstance that the key was to keep kids out. You know, she was stuck on it’s only to stop vandalism, which is saving the company money, and keep non-payers out of the gym. She could never  ever talk about kid safety. Another thing you can consider is she doesn’t work for them anymore. She was terminated. We don’t know why. You don’t have to speculate on that –

CROTTS: Your Honor, I object to mischaracterization of the evidence. There’s no testimony about termination.

POWELL: She no longer worked — I’ll restate it.

THE COURT: All right. Sustained.

POWELL: She no longer works for Camden property. It was difficult, it was painful to watch that deposition and we’re sorry that you had to. And you could see how painful it was to talk to her and to get the information that was needed. And it’s like, you know, she would do anything to not answer a question. On the other hand we had Mr. Ruiz. Nice man. Maintenance supervisor. His first question was, “Are you nervous? Yes.” He was very nervous. And I want you to think about that, he’s a grown man and compare that to how A.C. and J.T. felt when they were deposed and they came in this courtroom. Do you think they were more nervous than Mr. Ruiz? Consider that for a moment.  J.T. was the only eyewitness to really see what happened, and J.T. and A.C. were together playing that day. And J.T. says, you know, it was a bucket. And that fits perfectly in with the evidence that Camden was doing a lot of construction around there. It fits in with the ladder on the outside. It fits in with the photograph that he saw for the first time right there showing the treadmill and you can see the work going on around there. And what’s interesting is Mr. Ruiz said that the gym used to be blue and then it was painted red and then they replaced the windows and then they did the trim work and then they painted it red again. And that’s fine. So, I mean, whether the gym was blue or red, if someone suggests, well, that’s conflicting evidence. There is conflicting evidence, we’re dealing with the memories of ten-year-olds over four years that have a lot of interesting things going on in life and unfortunately they’re not focusing on this. So I expect there will be lots of conflicting evidence, such as when this photograph was taken. We don’t know. There’s no evidence, we just know it was taken afterwards. I’d like to talk a little bit about doctor – I’m going to jump ahead a little bit. One other thing I asked Mr. Ruiz about, I said, “Do you ever buy paint in five-gallon buckets?” And here’s the Camden stuff. Five-gallon buckets. It doesn’t say buckets, but it says five gallons. It’s kind of interesting, but he says I’ve never seen that before. I’m going to jump to the verdict. This is what you’re going to have when you go back there in a minute. And these questions have to be answered consistently: “Was the gym equipment located at a place where Camden knew or had reason to know that children were likely to be?” Mr. Ruiz said, yeah, kids have been in there. They’ve been in there a lot. I just shoo them out. We didn’t really report it to management. And when you ask Ms. Beyer she’s like, “I have no idea. I don’t know. I don’t know. I don’t know.” Of course they don’t want to know. They knew that this gym was a place where kids would go and they love to get in there. So when you answer this question you go to B: “Was the treadmill an unreasonable risk of serious harm in children?” The answer to that is obvious, yes, it was. In fact, you’re going to see in evidence the warning labels and the pictures that were taken of the treadmill when you go back there,  and you’ve seen them briefly here. That’s why they had a door that had an automatic closer, that’s why they had a door that had a lock on it, that’s why they gave only keys to adults. Then you go to number C: “Did Camden know the risk of the children” — “have reason to know the risk of children from the gym equipment?” Yes. That’s why they locked it up, that’s why they had signs, that’s why they had rules. Then you go to the second page. Did A.C. understand the risk? If someone says, you know, he touched one in Puerto Rico and he had turned one on and then he said he was, like, four years old and he was scared, which is fine when you’re four years old. That doesn’t mean that he understands the risks of the equipment, that just means he was scared of it. And obviously you’re going to hear that when he went down to touch the ball, that he knew he had to keep his fingers away from the treadmill but not, you know, touch the ball. You’re going to hear that, well, he knew it was dangerous at that point. He’s a ten-year-old kid. He’s afraid he’s going to break the machine. He’s in there doing something he’s not supposed to do and he doesn’t want to break the machine and get in trouble.  If he really understood the risk, he’d say, J.T., pull the red thing and stop it. But, no, that’s not what he’s thinking. He’s thinking, oh, my gosh, I’m going to break the gym or I’m going to break the ball, I just got to get it out, and boom, he gets injured severely. His hand gets yanked in there, fractured in three places and then it removed four percent of his body’s skin. You’ll see that in the Tampa General records. It’s a very serious second-degree burn. The next question: “Was he attracted, allured or attracted to the gym?” If someone says, well, you know, he only went to the gym for the air conditioning. Tell them this, say, you know what? There’s air conditioning all around Camden properties. He’s a minute away from his house. He could go to the clubhouse. There’s air conditioning all over the place. But what’s really interesting is, wow, you crack that door and you step into the gym, it’s like now you’re in Disney Land. It’s like, oh, look at all the neat stuff we’re not supposed to touch and play with. And that’s what happened, he was allured in there. The air conditioning was like okay, the open door was more alluring than anything. Like, wow, someone left the door open, let’s go in. That’s where this problem happened. And more likely than not the evidence is reasonably clear that the door was left open because some worker probably didn’t have an amenity key and needed to get in there and get something in or out or move something and he’s like, well, I got this bucket, I’ll just crack the door and leave it open for a second, I’ll be back in a minute and I’ll -you know, I’ll be right back. And unfortunately he wasn’t right back. If someone says, well, there’s a little conflict of evidence. How long was he in the — how long were they inside the gym? Was it ten minutes? Was it 30 minutes? You know, there’s a big controversy whether it was 10 or 15 minutes. If someone suggests to you, well, Camden had no way of knowing, they couldn’t have discovered, there’s not enough time. Remind them that it’s their employee who created the dangerous situation or their vendor, and if they had followed the rules and kept communication — if their system hadn’t broken down and said, hey, maintenance people, vendor people, if you see kids in the fitness center, if you see kids getting around the pool area, you let us know, we’re  going to put signs up, we’re going to send out a newsletter or we’re going to send warnings to moms, or we’re going to do a lot of things. They’re like, no, we’re not going to do any of that stuff. Let me go back to the — after you answer all A, B, C, D and E you go to number two, and that is: “Was the negligence on the part of Camden, and, if so, was it a cause of loss, injury or damage.” Absolutely clear that all the damages and injuries that happened to A.C. happened from the treadmill, that’s really not an issue. “Was there negligence on the part of Camden?” Yeah, there was. They didn’t have systems in place, they didn’t know how to keep kids out, they didn’t communicate amongst themselves very well. And their person or their vendor, somebody put a five-gallon bucket of probably spackling compound that J.T. thought was concrete. So when you answer there’s negligence, then you go on to questions 3, 4 and 5. And the medical expenses in the future, A.C. is going to have to buy lotion and ointment and sunscreen at a cost of approximately $50 a month for the rest of his life. Every couple of years it’s reasonable that he goes and he sees a neurologist about the numbness. Every  couple of years, probably going to need to see a plastic surgeon, and hopefully when he gets really in his higher age he’s not going to have arthritis in his wrist or his elbow and his shoulder from the trauma of having his arm pulled in there, but if he does, you know, we heard what Dr. Murphy charges for his time. I’m sure that the appointment to see a neurologist and an orthopedic surgeon is pretty similar. You can use your combined common sense and discuss amongst each other what you think is fair and reasonable for that. What’s his loss of future earning capacity? Well, the evidence was clear that — from Dr. Shahnasarian that he will have a loss of earning capacity. And it’s unrebutted testimony that he’ll lose 10 to 20 percent of his earning capacity, which, according to Brenda Mulder, and I’m sure you guys all wrote the notes — and we want to thank you for your attention and taking notes and asking questions. We really appreciate your participation in the trial and this is the most important part. I’m not going to cover all these things because I know you have it, but Brenda Mulder said between $95,000 and $300,000. Dr. Durham, right in the middle sort of, said without doing any numbers,  $170,000. That’s what the evidence is and you should put in for whatever you feel is appropriate. You know, what’s interesting is the lower number was based upon him not graduating high school, and the higher number was based on him graduating high school. If he gets some college then that may even increase the loss, but there’s no evidence about those numbers, so stick with what Brenda Mulder said. And then we get to: “What’s the amount of damages for pain, suffering and disability?” I’ll get to that in a minute. I want to talk a little bit about the jury instructions. I’ve shown you believability of a witness. Greater weight of the evidence, which means the more persuasive and convincing force of the entire evidence in the case. And that’s exactly what I was talking about in the beginning when I said more likely right than wrong. More likely right than wrong is the standard to be used with every single question on this verdict. And even if we’re just slightly right on one issue, then we win that issue. If someone says, you know, they didn’t really convince me or I have some doubts, just remind them that more likely right than wrong. Like Judge Huey said in the beginning, it’s a mere balance of tipping  of the scales and that’s how you address each issue, whether it’s the liability or each one of the damages. And if someone says, hey, I just can’t do that. Pull out the jury instructions which you’re going to have and read them together and say, look, this is what the greater weight of the evidence means. This is the standard, this is the law that we must follow. And just really work together as a team to make sure that that is exactly what’s going to happen. If someone says, hey, I’m not sure. You say, you know, that’s okay. There’s no certainty. We wish there was certainty, but that’s why we have trials like this and we have to look at the evidence as presented and see if we’re more likely right than wrong. You know, this trial has been kind of going on for almost four years and you guys have seen just pieces of it because we try to bring you what we can. You know, if you go back and forensically examine every single thing, you would have to start from the first minute. And if someone says, hey, I’m just not really sure about something. Just say, hey, look, this is what we have, this is why we have a trial. The evidence is here, use what we’ve got, that’s all  you’re going to get. This is the end. And it’s important to remember that everybody in America is entitled to come to this courthouse if they have a problem. And Ms. Ramos is here on behalf of her son A.C. and A.C. is the real person in this party. And Camden has the absolute right to come in here and defend this case and put up every single defense they want to. They are entitled to under the law. But what balances that out, the scales of justice is, you could put up every defense you have but A.C. is entitled to every single penny, every single cent, every single compensation for every loss, injury and damage that he has sustained. When you go through these things and you check yes, yes, yes and you get to 3, 4 and 5, then you have to say, hey, look, if someone else says, well, you know, it’s kind of a close case, we should give him less money. Say, look, that’s not what the law is. More likely right than wrong, we have to look at every single thing. So don’t like -The plaintiff has the right to bring the case and the defense has the right to defend the case, but the plaintiff has the right to a full and entire compensation. And it’s important to remember that  when you guys fill out that verdict, it’s public record. It’s done forever and ever and ever. A.C. will take that piece of paper with him for the last day of his life. He can never come back here if there’s not enough. He can’t come back and say, hey, I had a trial but, you know, they made a mistake, I ran out of money or I needed something else. The risk to be should be borne on the person who left the door open. It’s also an interesting thing when you read the jury instructions that the law uses a confusing word and that is award. And there is no award here. Award is really just, you know, most people think of an award as a prize. In the law it just means compensations for harms and losses. And it’s not a consolation prize, because if someone takes it like that, that’s outside the box. Like sympathy is outside the box. What’s in the box is what is fair compensation for all these damages and injuries. Can we go to the Elmo for a second? The elements that you’re seeing in the jury instructions go over each one of these items, and I wanted to talk about them a little bit. When it comes to how do we decide what is appropriate compensation for each one of these  things, you have to look at how bad is each harm, how long will it last and where on the scale of it does it lie? If it’s hardly at all, it’s a small amount of money. If it’s a lot, a medium harm, a medial amount of money. If it’s totally incapacitating it’s a large harm and a large amount of money. And when it comes to bodily injury sustained by A.C., it’s any bodily injuries, the first part. And that means exactly that, any injury, from the itching and the stretching and the irritation that he has, that is a bodily injury. From the most minor thing to the biggest thing, the tiredness in his hand and writing, from playing basketball, you know, using his arm when he gets tired writing, that’s bodily injury. How bad is each harm? You know what, it’s sort of like putting one of those little binder clip fingers — you know on your finger. It doesn’t really hurt much, you know, it’s sort of irritating, but when it’s there forever, all the time, then it gets bad. So it’s the harm for bodily injury. How bad is it? At one point it was terrible. We’re going to get down to that when we talk about pain. How long will it last? It’s going to last for the rest of his life. On the scale of where does the harm lie, you’re just to decide whether that’s a  small harm, a medium harm or a large harm. Let’s talk about the resulting pain. Think about the pain that A.C. experienced of having his hand and arm broken in three places. Think about the pain that he had as described by Dr. Cruse the plastic surgeon, a pediatric surgeon who said, yeah, we had to slice the skin off of his buttocks and then we grafted it onto his arm. Think about pain that he went through. Fortunately, he was anesthetized when they drilled a hole through the bone in his arms in two different places and took a hammer and nailed that through the bone all the way to set it. Think about the pain he felt when he finally after 10 or 11 days in the hospital gets rolled in a wheelchair and put into his mom’s car and she takes him home, and as she gets home she opens the door and is taking the seat belt off of him and he’s like, uh, uh, it hurts, it hurts, Mom, everything hurts. And she has to gently lift her son out of the car who at that time weighed a hundred and five pounds. And she finally after about 10 or 15 minutes gets him down on the street out of the car and they go up on the first concrete step of the sidewalk to walk into their house and just taking that first step and feeling all  the pain from the scar and his arm is in a cast and his whole right side is stuck. And so she slowly gets him up and finally up to that first step. Think about the pain that he experienced as they had to change the wound dressings three times a day. And they talk about the flowing of blood, and Dr. Murphy said, I asked him, I said, “Tell me about the tissues that are injured next to the bone when they’re fractured.” He goes, “Yeah, it tears some things a little bit.” Well, that’s where intense blood came from. Also probably whatever surgery they did to graft the skin, they’re trying to do microsurgery. So that’s not usually too bloody, but the fractured arm and the pins that he had in his arm. That is the pain. And the pain in this case is extremely severe. Extremely severe, the highest, highest, level. I think Dr. Murphy, Dr. Cruse, everyone, there’s not a doctor who said there’s anything less, it’s unbelievable pain. And I think A.C. said it felt like a thousand matches on him when he had to get up and take a shower. Pain is what I’ve just discussed. What’s the next thing is suffering. Suffering is knowing that as he got that first step out of the car, he’s got 20  more stairs to climb to get to his home. Suffering is knowing that I’m wearing a cast but I’ve got to go back to the hospital and they’re going to put me to sleep and they’re going to have another surgery to pull the nails out of my bones. Suffering is knowing that it hurts so bad that his mom and his sister have to change the bandages and that in eight hours they’re going to come in and do it again. Suffering is physical and mental. It’s grief, it affects your mood, it causes depression, sadness, frustration, embarrassment, loneliness, and rejection. Suffering is thinking, boy, I’d like to go to the bathroom but I don’t want to get up, I don’t want to move. I wish I could get something to eat or drink, oh. Suffering is like, oh, I don’t want to have to call my mom and my sister one more time to see if they can get me something. The suffering that A.C. suffered is very, very high, extremely high. Disability or physical impairment. You know, A.C. is fortunate that so far orthopedically he’s in pretty good shape, neurologically he’s in pretty good shape. He can’t play basketball as much or throw the football, when he sweats it has a problem, but he’s pretty lucky in that his hand wasn’t hurt worse. So  I think that the disability or physical impairment is somewhat on the smaller side, it’s not so high. THE CLERK: Five-minute warning counsel. MR. POWELL: Thank you. Disfigurement. The scar looks very bad but he’s going to have that for the rest of his life, there’s nothing he can do about it. You’re going to read from the medical records it’s a four-percent degloving of his arm. And the wholeness of a person, you know, he has the right to be a whole person but he can’t be. That change will forever go with him everywhere he goes, relationships, interviews, the way people may look at him. You know, are people going to judge him? Those are those intangible things that are so difficult that he’ll feel or maybe not feel or he’s wondering, are they talking behind my back? Are they wondering what’s going on? Do I have to tell them what this is about, you know every time someone asks? Mental anguish is feelings of distress, disappointment, anger, worry, embarrassment, grief shame, despair. It’s like emotional torture. Inconvenience, this is like little obstacles, little problems. Like having to wear sunscreen. Like not being able to get on a bike on a second’s  notice or go out and play tennis without having to wear a long-sleeve shirt or put on second special sunscreen and lotion on your arm all the time. Inconvenient when you’re playing basketball with your buddies and you’re like, hey, I got to stop, I got to put more stuff on my arms. Oh, I’m sorry, I got grease on you. Loss of the capacity for the enjoyment of life. How will these scars affect A.C.? Those are the things that you can talk about when you go back there. Because when you get to number five, is $10,000 a day enough for all the pain and suffering he experienced while he was in the hospital? You could put any number there you want. You could put one million dollars. And in the future how is this going to affect him? How is he going to go forward? How is his self-esteem going to be as a result of this? Again, you can put any number you feel. You just look at what are all the harms and what are all the losses. And think about it, what if somebody put an ad on Monster.com or Craigslist and says, we’re looking for to hire someone. First we have to break your arm in three places, remove four percent of your skin, have you gone through hospitalization and surgery. Think  about how — what would be a fair and adequate price for that to charge for all of those things that someone has to go through. Those are the types of ways that you will measure the harms and losses and come to a number on that. I’m going to sit down in a minute — oh, I want to point out one other thing. If someone says what’s this itching thing about? Take a look at medical records from Dr. Munoz that shows that when he was seen just a few days — that’s the day before his arm was injured, he was 10.4 years old, he weighed a hundred and five pounds and was 60 inches tall. And then this last visit, 14 years of age, a hundred sixty-nine pounds, he’s now 5-foot-8. That explains a lot of why the arm is growing and the bones are stretching the skin and the skin graft doesn’t quite grow at the same speed as the normal skin. That’s why it’s got itching and burning and cracking and you’ve got to keep it moist so that he won’t have a problem with that. When it comes to liability I want to point out some records that these are the security guard that protects Camden’s property and they go around and they make reports.

CROTTS: Your Honor, excuse me, what exhibit is that, counsel?

POWELL: Pardon? Never mind, I apologize. Ask yourself this question, you heard Ms. Beyer, why was she so reluctant to tell us about the pool door and the door in the — gym door and the confusion and the fighting that went on and on and on, why it took them almost a week to get it figured out. When you go through the liability aspect of this case you’re going to have to decide whether or not Camden created an unreasonably hazardous, dangerous situation by alluring these kids into a gym where they can play with and get hurt. And when you go through all that and you say, you know, from the totality of all the witnesses and everything we’ve heard their only witnesses were Beyer and Ruiz. And Mr. Ruiz, poor Mr. Ruiz. We didn’t get any training, we didn’t get any procedures, we didn’t get any policies, we didn’t know how to communicate these things to management. And can you understand why you wouldn’t be so excited to talk to Ms. Beyer, she’s like — she’s like an ostrich, I don’t know anything, I don’t remember — I can’t tell you what time it is, I can’t tell you what day of the week it is. This is terrible, it’s all made up by the lawyers.  I’m going to sit down now and I thank you for your time and I’ll address you guys after Camden has an opportunity to explain their side.

THE COURT: Go ahead, sir.

CROTTS: Thank you, Your Honor. Good morning. Additionally I want to again thank you on behalf of myself and my client, Camden, and Ms. Nicolai, we appreciate your attention. This is an important week, an important day. Our work is almost done, yours is just beginning. And this is a — this is everyone’s day in court. It’s Ms. Ramos, it’s her son A.C. and it’s Camden’s and we do appreciate this. At the time of opening I told you that we we’re going to tell you what the evidence was going to show and I emphasized, if you remember, that we were talking about all of the evidence, not just part of the evidence, not just one person, but all of the evidence. And my opportunity now in closing is to sort of go back and look at all of the evidence and say, what did it show. Did we show you what we said we would show you? Did we accomplish that through the testimony? And we suggest to you we did. Before we go over the evidence, though, what I  want to do is look at a couple of jury instructions, and you’re going to have these to go back, the Judge just read them. And they’re all important, but a couple of them I would suggest are a little bit more important to pay attention to. And one is greater weight of the evidence. And greater weight of the evidence basically is that you heard the questions, within a reasonable degree of medical probability. And we even asked Dr. Shahnasarian about that: You’re an expert, you understand the difference between could, maybe, possible or probable. The probable is that shifting of the burden, that’s why those questions were repeatedly and nauseatingly asked a lot of times because it deals with the burden in this litigation. Counsel mentioned a moment ago that, well, if there’s a risk, you know, he says, everyone has a day in court, if there’s a risk then it should go towards these folks. Well, that’s not the way it works. We don’t look at it and say if there’s risk. We say, the Court says, the law says that we have to follow: Did they meet the burden? Probability, burden. It’s not, well, if there’s any risk we just have to award something because he has an injury. Nobody disputes that he had a significant injury, nobody’s  going to dispute that he’s got significant scarring from this that he’s going to have for the rest of his life. But these are separate elements: Liability, causation, damages, they’re each separate individual elements. And you can’t look at the injury and say that’s going to dictate what happens or who’s at fault or if anybody is at fault, but the greater weight of the evidence and the probability standard. The next one is negligence. The Judge read that one to you. Negligence of somebody doesn’t mean perfections, it doesn’t mean guaranteed results. And if you look at the instruction it uses the word reasonable four times in four lines to define what negligence is, it’s reasonable care. Reasonable care. It’s not in retrospect could we have been perfect, it’s reasonableness, that’s what negligence means. Again, that’s burden in the summary of the negligence claims. A.C. must prove his claim by the greater weight of the evidence. A.C. must prove his claim, every element of the cause of action. Every element you’re going to read on that verdict form is a burden that they as the plaintiffs have to prove by the greater weight. If they do not, then you have to  answer that question accordingly and either move forward or not on the verdict form. It will give you instructions on that. Believability of witness. You can look at the witness in a case and you should and weigh their testimony, because if you didn’t have this standard, all it would be was, well, he called five witnesses, he called three, therefore the five win. It doesn’t work that way. It doesn’t matter how many witnesses you call, it’s the quality of the witness’s testimony, the believability. And this kind of tells you how you access that. Part of it is as to experts. You’re entitled to accept the opinion of experts, reject it or give it the weight, give it the weight you think it deserves based on your recollection and consideration of all of the evidence together, not just what the expert says. You’re not obligated to accept, for example, Dr. Shahnasarian because Dr. Shahnasarian says what he says, and we’ll go into that in a moment, but you weigh according to your observations of the witness and according to what you know about all of the other evidence in the case in light of what that witness is telling you. You should use reason and common sense but you  also shouldn’t guess. And that’s the — another aspect of weighing of the evidence. You shouldn’t guess at what happened or didn’t happen. Plaintiff’s counsel has mentioned multiple times during this so far, you know, well, maybe this happened, maybe that happened, maybe they were doing this, maybe that. We don’t go on the maybes or this might have happened. We don’t know, but, you know, maybe he was going in and, you know, looking for some other tools, the construction worker that we don’t know who he’s talking about. The construction worker that, you know, put a bucket there because he didn’t have a key to get into the door but yet he had the door open and he puts a bucket there. But maybe he was going in to get some stuff he left in there. Well, there’s no evidence about some stuff being left in there. Several examples that were brought up during the opening statement. You ask yourself what evidence is there to support what is being said. And I will tell you, if I say something that your recollections and it doesn’t reflect it, say, that’s not what the evidence said, and obviously you go with what you remember. I’m not the witness, I am telling you what my  recollection of the evidence is. And that’s what Mr. Powell is doing too. So neither one is trying to misstate the evidence, but if we say something wrong then obviously you go with yours because we’re not testifying right now, we’re arguing to you. So once we look through those examples of the jury instructions, and, again, they’re all important, but the ones we really suggest are probably the most important for you to look at from our standpoint. I want to look at the individual issues in this case. And the issues in this case, we’re going to start with liability. And the items that I’m going to be showing you and talking to you about are all in evidence. They’re all marked, everything I’m going to say to you and everything I’m going to show you here when I show you a piece of paper, it’s there for you to take them back. And we don’t fortunately/unfortunately have the time, we’re kind of pushing it for you, we don’t have the time to sit here and go through every line, every page and read it to you or you would be here another five days doing what we just done. But I’m going to — I’ll suggest to you everything I’m going to talk about is in that evidence or it came from that witness stand or it  came from that screen when you heard somebody testify. But the first question on the verdict form, and we’re all working from the same verdict form, “Was the gym equipment located on the premises where we had reason to know that kids were likely to trespass?” There’s small words in these that are important, “That we should have known were likely to trespass.” Now Counsel a moment ago said, oh, yeah, Mr. Ruiz came in here and he said, oh, yeah, they had kids in there, a lot of kids in there, a lot of kids were in there. That’s not what his testimony is. He was there five years as a maintenance supervisor and he said he recalled a couple of occasions during that five years where he found children in there and asked them to leave. That was his testimony of that. So the, “oh, yeah, there were lots of kids in there,” why is that important? And you’ve got to remember also, Ms. Ramos lived there for three and a half years herself without incident. Didn’t say negative things about their complex, lived there, renewed her lease, kept coming back another three, three and a half years, apparently happy with the environment she was in and the safety with her and her son and the stepfather  that was living with them at the time of the accident, by the way. So the question about whether children were likely to trespass, you have to look at the entirety of that, not just one day. And a couple of kids in a 385-unit complex where there’s all kinds of families, elderly, younger, there’s a mix of people here. Are they likely to trespass? Because we have a couple of kids get in or several kids over a couple-year period, does it make it likely that we should say, it’s very likely kids are going to keep getting in it. I suggest to you the answer to that is they’re not — yes, we know kids can get in there, we’re not denying that, that’s in all walks of life things happen that we say that shouldn’t happen but it does. But are they likely to trespass? Was it happening on such a frequency and so often that we should say, it’s likely he’s going to get in there, we have to change something or do something different. I suggest to you the answer to that is no. It wasn’t — they weren’t likely to trespass. The next question, and I’ve used the word trespass, that sounds like someone sneaking in a window at nighttime. As to this particular room,  he’s the equivalent of a trespasser because he’s not supposed to be in there. That’s why it’s a locked room. Everywhere else, he’s certainly entitled to be there but he’s not supposed to be in this location. He’s kind of gone beyond where he’s allowed to be. And number two, which is B: “Did the treadmill have an unreasonable risk?” So was the treadmill itself unreasonably risky? If the question is, is there a risk? Well, sure, there’s a risk, it’s a piece of equipment, moving equipment. There’s a risk to any piece of moving equipment. There’s a risk to the scissors that the clerk has over there. There’s a risk to the stapler if you misuse it and do things with it you’re not supposed to do. But was it unreasonable? Was that an unreasonable risk to have that treadmill there? The treadmill itself, you’ve seen the pictures, you’ll see them in evidence. It was a clean, organized room. The treadmill looked like it was in good condition. It had the safety cord on it to pull off if there was an emergency. You’ll see photographs of the warning stickers that were on it that say, “Warning, serious bodily injury. Danger. Don’t get on here with loose clothing, don’t put fingers, hands in moving parts.” It’s right there  next to where the button is to push on and off and the button to make it go faster and slower. So is this an unreasonable — is the treadmill unreasonably risky? I suggest to you it’s not, it’s a treadmill. It can be if it’s misused or not maintained but there’s no evidence of that in this case as far as it not being properly maintained or taken care of. And especially when it’s in a locked room, it’s in a locked, secured room. On this day was the room secured? Apparently it was not because they were able to get in somehow. Now how they got in, we don’t know and I don’t think anyone — the evidence doesn’t show anyone is going to explain exactly how or why that door was able to be opened the way it was on that day. The next question, and you have to answer these one at a time, you can’t jump forward, you have to follow them in order because there’s a reason they’re like this. The next one: “Did Camden have reason to know of risk to children?” Well, on that one, yes. Clearly we knew it could be risky to children because if not, why are we putting it in a locked room with warning, as counsel said, signs and stickers and rules and self-closing door. Absolutely we knew it  was a risk to have that. But the residents want that type of thing. The residents have a gymnasium to work out in, they have the fitness center that they can exercise in, just like the pool. There’s a risk, but the residents want that. Reasonableness tells you that probably part of why people come to various complexes is to have the amenities. So, but on that one, do we know it’s risky? Yes, there is a risk, we don’t deny that. D: D is the most important — one of the most important, and I would suggest to you clearly answered question in this case. “Considering his age, considering his age, did A.C. understand the risk involved in meddling with the gym equipment?” Did he understand the risk of what he was doing when this happened? What evidence do we have that he understood this risk? We’ve got the evidence that started before he even moved to Florida. When he said, testified -and you watched A.C. testify, that’s a well-spoken, bright young man who was clearly able to communicate, voiced himself, understood the question, and he explained and he agreed that in Puerto Rico I had turned one on before, I turned it off before. Other people were using it at that time.  I asked him, “Did you use it?” He did not use it. Why didn’t he use it, because he was scared of it, he didn’t want to get hurt. So right there even before he got here and moved, he had been in that apartment for about three years, so at least three years earlier, he knew the risk of a treadmill because he said he did. Let’s move forward some. He got to the apartment complex. If he didn’t understand the risk, and by the way, plaintiff’s counsel says, oh, we didn’t have policies, we didn’t have procedures, we didn’t have communication, something must have been working because J.T., the young boy, his grandmother was able to — somehow able to understand that J.T. wasn’t supposed to be in that room, or J.T., J.T., wasn’t supposed to be in the room because he said, yeah, my grandmother told me about I wasn’t supposed to be in there, I’m not a resident there. Ms. Ramos clearly understood because she said, I went to the gym, I looked in there and saw it, I had discussion with my child and she said, “And I made sure he understood.” And I said, “If he didn’t understand what would you have done?” “I would have made sure he understood.” “If he didn’t understand would you have let him go out on his own?” “No, he  understood.” “And what did he understand?” She said, “I told him the equipment in there is dangerous.” The equipment is dangerous, that’s why you can’t go in that room. And she said, I was comfortable as his mother knowing him and his background, he understood what I was saying, which is why I was comfortable letting him go out and about of the apartment by himself. And we’re not blaming Ms. Ramos here. She did what a mother should do and told her son. Her son understood. I asked — I said, as far as our complex not letting people know the rules, clearly they understood, because that’s why she told her son this. We asked A.C. himself about whether he understood this, he said, yes, I understood it, I had a discussion on it with my mom. He even said she had to tell me a couple of times. I said, “Did you understand it?” He goes, “No, I understood it was dangerous. I’m not supposed to go in there. The equipment can be dangerous.” So he knew it from what his mother told him. He had tried to get in before and couldn’t -and couldn’t get in there. So he clearly knew it was something that was dangerous, somewhere he wasn’t supposed to be. He understood there was a key  separate for that and he wasn’t supposed to go in without a parent or without an adult. He understood all of that. So then on this particular day, he goes in there. And by the way, they didn’t go in there because they said, oh, my gosh, there’s the gym, let’s go in the gym, they went in there because they had been fishing, it was hot. And both boys said, we went in there to get cooled off. As a matter of fact a follow-up question was asked, oh, you also went out there because of the gym? And he said, no, we went in there because it was cool. They were hot and they wanted air conditioner and they thought it would be air conditioning there, that’s why they went in. They weren’t allured or attracted to this room because of the equipment, their own testimony, their own testimony from the two boys involved is that we went in there because it was hot and we wanted air conditioning and that was it. This equipment, this gym itself did not allure them — oh, my gosh, we’re going to go in there and play with the equipment, look the door’s open. They went for the air conditioning. That’s unrebutted. That’s their testimony from A.C. himself and the only other person with him, the young boy.  But the testimony again from A.C. is when he gets in there he turns the machine on. He knows how to work it, he turns it on and it’s not going fast enough. So he then goes back over and turns it on faster, making it go faster, the whole time standing right looking over the warning zone. And you’ll have the warnings to look at when you go back there. But these are the pictures of the warning stickers that are across the handlebars right near the on/off switches and it basically says, “Warning, serious injury could occur if these precautions are not observed. Keep all body parts, towels, from free — clear from all moving parts.” Read your instructions, these warnings are right there. He’s reaching over them to turn things on and off. Am I saying he has to read this? He should because he’s going to use the machine. He’s bilingual, he’s been reading, he can speak English, Spanish and he can read both. But he understands the dangers of the machine because, again, he didn’t play on one before because he knew it was dangerous. But this particular day the real significance, as he turns it on, speeds it up, he knows it’s got moving parts, that’s why he’s throwing the ball, because it has moving parts. That’s what’s making it  work from them because they throw it on — they’re standing at the end of the machine, he comes up, turns it on, comes back faster, they take the ball and he sits there and they’re throwing the ball. It hits the belt coming this way and they catch the ball. Take turns, do it a couple of times, according to J.T. they’re probably in there 10 minutes, maybe 15, but in his deposition he said ten, either way not very long. And A.C. throws the ball and rather than bouncing he gets down here underneath. And both boys said they saw the ball getting pulled under the machine, because the belt’s spinning this way. So it’s coming like this, they see the ball’s going under the machine, so A.C. reaches down to get it. And if you remember, and I showed, as I’m doing here, I did the same thing with A.C. when I asked him. I said, “A.C, when you reached down to get that ball when that was starting to go under the machine,” I said, “Were you trying to be careful to keep your fingers away from the moving belts so you wouldn’t get hurt?” And he said, “Yes.” He said, yes. When he put this hand down there, he tried to keep his fingers away from the moving belt. And then I said, “And then unfortunately your hand went too far and  you got caught by the belt?” “Yes.” That’s his testimony. He understood the dangerousness of that machine in general and he understood it that day, because he’s watching a ball get pulled into the machine. He’s careful not to put his fingers to hit the belt because he doesn’t want to get hurt, he doesn’t want to get pulled into the machine, and he, unfortunately goes a little bit too far and he gets pulled into the machine. Just because an accident happens or just because he was injured, doesn’t mean he didn’t appreciate the risk. That’s what accidents are. In jury selection we talked about texting and driving, crossing the street at the wrong spot. A lot of things people do in life that, you know, in retrospect we go, yeah, we kind of knew that was dangerous but at the moment I just kind of did it anyway. His own testimony unrebutted by everyone was when he put his finger there he tried to avoid the belt so it wouldn’t get hit with — so it wouldn’t hit his fingers, and it, unfortunately, he went in too far and pulled it in. He knew the risk of what he was doing. And on that question D on the verdict form? “Considering  his age did he understand it?” He absolutely understood it. He’s testified he did, very candidly he admitted he did and the background shows he did by virtue of all the other information we have. And on that one you mark, yes, did he understand the risk? He did understand the risk, that’s what he’s told us. The next one is, “Was he attracted into the gym by the gym equipment?” The only testimony is, again, from the two boys. They were attracted to the gym because it was cool. They didn’t go there because it was a gym, they went there because it was cool and they wanted air conditioning because they had been fishing and they were hot. That’s what they said. Counsel can argue what he wants and imply what he wants, but that’s what the testimony is in this case, regardless of whether he has a serious injury, a not serious injury, regardless of what the result was, the facts getting us there are what we’re looking at in these first sections of the verdict form and those are the ones you have to follow if you’re going to follow the law the Judge instructs you on. If you — so we would suggest to you those are the initial questions and depending on your answers to those questions, you’ll either stop at a certain  point, because the instructions say if you answer this, stop now and come back to the courtroom, or if you answer this way, then go to the next question. So you work yourself through those particular questions. And we suggest to you the evidence clearly supports in this case their evidence from their client that he will not get to question two. Because question two, if you got through all the other ones, goes to the question of whether or not Camden was negligent — Camden was negligent. Now counsel told you a moment ago when looking at number two where it says, “Was there negligence on the part of Camden, and, if so” — and he said, well — so the question is was there negligence and, you know, what’s the value of the damages? Well, it’s a two-part question. Even though it’s in one, it says, “Was there negligence and was that negligence” — that negligence we’re talking about, whatever you find, if you find some, “did that cause the harm?” Counsel talks about, well, they need policies and procedures. They need a written policy and procedure to say what to do in a given circumstance. And as a matter of fact mentions the pool gate,  where, you know, door and the pool and I think one of the jurors asked a question about to Mr. Ruiz; not a question I asked, not a question Mr. Powell asked. The question right from y’all, he’s sitting there and how does he answer that about — because the question obviously it came from — “Well, if you had a pool gate” — and the testimony from Ms. Beyer was clearly that those are not talking about the fitness center, they’re giving a reference point because there’s three entry points in the pool and one is the fitness center pool gate door over here, the other is the lake pool gate door and then there’s a laundry room pool gate door, so we’re not talking about the fitness center, but it was a good question. “Well, how did it take so long to fix that?” Well, that has nothing to do with this young man getting into that room on that date because there’s no testimony the lock was broken, there’s no testimony the self-closure wasn’t working, as a matter of fact, it must have been working because somebody put a bucket there. If they weren’t working you don’t need a bucket because you just walk in the room because it’s not locking or closing. So, clearly, those aren’t issues, but those are things they want to throw out there to have you think, oh,  Camden is just bad. We’re not sure what they did wrong, we don’t have a good feeling about this. Again, she lived there three-and-a-half years, happy, content but for this one incident. What does that say about what type of place they’re running there? But in response to the question about, well, how did it go so long to fix that gate? Without hesitation what did Mr. Ruiz say? He says, “Oh yeah, I remember that, because they were working on the outside of the building and when they were working on the outside of the building at that end they damaged the hinges on the gate and as a result the gate wasn’t securely closed.” And he said, “What we did, we secured the gate, we put some paper on it” — the yellow-type tape — “to make sure it was secured to keep people out until we could get that fixed.” That wasn’t just an, oh, we just need to change the lock, they had damaged the gate itself and the hinges. So do you need a written policy and procedure that says you should have done exactly what he just did? I suggest to you reasonable and common sense says the point is are they doing what is reasonable, doing what is necessary? So if the — so if his understanding is, if I see a child in that room that’s not supposed to be in there I have that child  leave the room. If there wasn’t a written policy that says, Mr. Ruiz, when you see a child in the room you need to the remove that child from the room. Does that make him negligent all of a sudden because they didn’t have a rule, written rule saying what he just did? Listen to the testimony about how they had this — how they ran this complex as Mr. Ruiz said. “We get things fixed within 24 to 48 hours.” Again, that has nothing to do with this incident because there’s no evidence anyone complained of this, that there was a problem to be complained of, and there wasn’t. Again, nothing was broken or there wouldn’t be a bucket there, that’s what common sense tells you. So all this other was Camden negligent, you may think they were negligent for not having a written policy about what to do during a catastrophe, that’s why I mentioned the and, the causation. Whatever you think they should have done different you have to ask yourself, and did that allow this to happen? It has to be both. You can’t just say, well, we don’t like them and it doesn’t matter whether it caused it, that negligence has to cause this harm. And we would suggest to you this apartment  complex was run in a very good fashion, apparently it worked because A.C. had tried to get in previously and could not and the number of times that anyone had ever gotten in there was very limited, according to what the testimony was, that they had a lock on the door, they had the self-closer, they had glass windows so you can see, they had maintenance people that would keep an eye out, they had cleaning people to come in, they had security guards that would come around at nighttime to check things to make sure things were working. And if there was a problem that couldn’t be resolved, Mr. Ruiz, what did he say? I would get ahold of Ms. Beyer then if I couldn’t solve the problem. But he solves the problem. So look at the testimony overall as to how it was run and the steps and everything that was in place to properly run that apartment complex. And then if you do disagree with something, ask yourself, how did that cause what happened here? How does that lead to somebody putting a bucket in front of a door? What’s the link? Because there has to be a probable link to be able to make that relevant to the case. The real question here is, how did the bucket get there? Because all we know is there’s a bucket there, and a five-gallon bucket that Mr. T said was  a — had some kind of cement in it, he didn’t know if it was dry or wet but some kind of cement. And counsel says, well, you know, Camden put the bucket there, Camden or its contractors. Well, you’re not going to hear a jury instruction from the Court here that says Camden is the employer of or responsible for a contractor if a contractor did something. There’s no jury instructions telling you that. The first thing is, is there any evidence at all versus speculation? And that’s really what we have –

POWELL: Excuse me, Your Honor, he’s going outside the evidence adduced at trial.

THE COURT: Overruled.

CROTTS: So when you’re looking at who put this bucket here, there’s no evidence at all that a Camden employee put that bucket there. And Mr. Ruiz said, he says, what I do with the contractors when they come in is I check them in so I know they’re on site. A good procedure to follow. I give them an amenity key and they give me an ID when they come in and then at the end of the day they have to give me the key back and I give them back their ID so we know who’s got the keys. So he controls the keys to the amenities. So we’ve got that.  And if something is going to be done what does he do? He puts a sign up and closes it off. So if they’re working in a fitness center, they put a sign up that says, closed, and it’s closed to all residents or anyone to use it while it’s being worked on. There’s no evidence that there was any kind of a sign or anything like that on that particular day. There’s no evidence from the boys that anybody was working in the room. Then he said there were some construction guys outside. Well, what were they doing? Working outside. They weren’t working in the room. So the — we don’t know, the evidence doesn’t show up who put this bucket there, why the bucket was there, whether the woman who was in there working out had opened that door and held it open for some reason, if she saw someone’s bucket, whether it was a contractor or anyone else and did that to block that door open for some reason, we don’t know. Maybe the person in front of her that worked out before her put a bucket there. We don’t know. There’s no evidence. But the point is, we as Camden don’t have to come in here and figure out who put a bucket there because we don’t have the burden. Plaintiff has the burden of showing that Camden is responsible for that  bucket being put there in some fashion, and, if so, then you would say, yes, they’re negligent. But ask yourself what evidence shows Camden put the bucket there. The color of the room, made a big deal out of that. Why is it a big deal? And you’ll see the invoices when you go back, but look at the date the paint was purchased, the red paint. The red paint was purchased about a month after the accident. That’s important because the room was blue when the accident happened according to A.C.’s own testimony that I read to you. It was blue when he was injured. That was before they were working on it. Now Mr. T remembers it being red. Well, the red paint wasn’t purchased under the Sherman Williams’ invoice, the red paint wasn’t purchased until a month later. And that’s why if you look at the work and what Mr. Devlin said or Mr. Ruiz says was that they did the outside, they then came in and painted the room and then realized they had to do some additional stud work inside so they had to go back in and do something around the windows. Look at the invoices. There’s an invoice for that and it shows that was done in April. That was done in the end of April after this accident happened.  And then they went — and that’s with the spackling. That’s what the spackling is when they came back in to replace some studs around the window on the inside and what they had just painted red they then had to fix and that’s why they spackled it and had to repaint just those portions again. Some of this room, according to Mr. — according to the records, according to Mr. Ruiz and according to A.C. was blue at the time. Again, the significance is, it wasn’t being work on, painted, and the boys never said there was anything inside that room that led them to believe somebody was working on it while they were in there to have some reason to have that door propped open in some way. So I suggest to you the evidence in this case does not show that Camden did something negligently, failed to use reasonable care that allowed or caused somebody to put a bucket there to keep this door propped open. I’ll ask you to look at all the evidence and ask yourself, what is there to show that Camden did something to cause this? If you think they did, then you would mark, yes, there is negligence. If you think there’s not, you would put, no, and follow the instructions. We suggest to you by the time you get to that  point on the verdict form, you’re following the law — and that’s kind of why I kind of made those silly statements, you know, who knows someone that doesn’t — in jury selection, who knows someone that doesn’t follow the rules? You know, are you one of those people? There’s a reason we ask those type of things. Because it’s — I suggest to you it’s tough in a case where you have some injuries, some serious injuries to look at somebody and say, we know you’re hurt but you didn’t meet your burden as to the liability issues but we still know you were hurt. That’s hard to do. That’s why the Court has a sympathy instruction. The last instruction you’re going to hear before you go back to deliberate is going to be one that says you can’t use sympathy for or against either party. You’ve got to leave that in these chairs here when you go in the room. Take your common sense but you can’t let it drive you. Because you feel bad that something happened it doesn’t — can’t impact how you decide each of the issues along the way. It’s not that we don’t want sympathetic people, we do, but we can’t let the sympathy dictate verdicts and decision-making. And that’s not my rule, that’s the Court’s rule because they know it’s difficult,  that’s why we have that instruction for you. If we get past that, let’s go to the damages because if I just ignore the damages then in rebuttal when they get back up here they’re going to say, Troy must agree with every number we said or he would have come up here and said something to us — to you. So I need to go through that real quick. Let’s start with the — okay, let’s start with the various areas of injury. There is nobody on behalf of Camden or these — either the witnesses that came in or the medical records who said that he does not have a significant — he certainly is -he’s got a permanent injury to that arm. That arm can never go — you know, look different. You saw it, and, unfortunately, as I asked the doctors, “Did it heal without complications?” And he showed you and fortunately it has healed. But, no, no one is sitting here and saying that he did not go through a terrible amount of pain; initially, treatment in the hospital, recovery for a couple of months while he was getting back on his feet, having the -absolutely. Not in any way disputing that, nor would we, nor would the evidence ever support saying that wasn’t painful, that wasn’t scary, that wasn’t horrible for a young man to go through.  And have to live with the scarring the rest of his life, absolutely, that is also an injury that if there’s liability he needs to be compensated for it, because he’s going to have that for the rest of his life. So we’re not disputing that. What I would dispute is when counsel comes up and says, well, you can put $10,000 a day. You can put a million dollars a day. I suggest to you that you haven’t heard anything about, from the evidence, the witnesses in this case as to a dollar value for pain and suffering, that’s based on your common sense, not a number that an attorney suggests. Because if he says, you know, $10,000 a day and I say a dollar a day, well that’s silly, my dollar a day is silly, his is silly. We aren’t fact-finders, you are. So use common sense in valuing those damages when you get those, those sort of intangible — the impact it’s had on his life. And certainly it has and it will, if nothing else from the visual standpoint. Now the future medical expenses, we’re not disputing that. If you believe there’s future medical expenses that should be met, absolutely he’s going to need the cream, the sunscreen and covering, he’s going to need that for the rest of his life and  that costs money, so absolutely you would award that. Now when counsel says, well, maybe his arms is going to do this and maybe he’ll need this and this in the future and, you know, Dr. Murphy charged X amount to testify so that’s probably the same for another doctor’s visit. You heard the doctors that came in, they were asked the question, “Do you have an opinion within medical probability as to future medical care and treatment?” And they answered the questions. Counsel’s comment on that, I suggest to you to follow the evidence that you heard and you didn’t hear evidence from anybody as to some future medical costs. All you heard Dr. Martinez say was, initially he said one number, but often he agreed a hundred dollars for a visit, but if he doesn’t get any help from this medication I’ve prescribed then he doesn’t need to see me. It’s PRN, as needed. And the funny thing about the medication is, he’s not taking it. As Ms. Ramos said, he’s not taking any medications. So there’s no testimony as to the future medical care and or treatment that he needs other than the types of things to keep his arm covered and protected from the direct sun. Now, what I would suggest to you, too, is if you look at the — when we’re looking al — sorry, I’m  talking so fast. What I would point out, too, though, that’s important is there’s kind of — when we’re looking at the future, that’s a little tougher as far as, you know, the scar is an easier one because we all see that, that’s objective. You heard Dr. Murphy testify, subjective, objective. You can’t prove sometimes that something that’s subjectively is complained whether you really have that. You know, I can say my ankle hurts, right, but you don’t know whether it hurts or not. The doctor might look at it and say, I can’t tell, I don’t find a reason for it, but if you say it does I’ll go with what you say but I can’t medically prove it. So the arm scarring, that’s an easy call, you can certainly compensate for that, but when you get to the other more difficult, I would suggest to you based on the evidence in this case, issues, and that’s why we brought the various doctors in. The pediatrician who has seen — and you remember the pediatrician, Dr. Munoz, Dr. Chan, the orthopedic physician that did the surgery and took the rods who they haven’t seen since July of 2011 where he said, “p.r.n, he’s doing well. Everything well and healed. No complications, no problems, no restrictions.” His records are in there, you can  look at it. Florida Orthopedics, it’s a one-page document, you can look at it in there. Please look at those records. So we got doctors Chan, his orthopedic; we’ve got Dr. Munoz his primary care doctor, pediatrician before and still; we have Dr. Wayne Cruse, the plastic surgeon. His team is the one who helped him initially and saw him as recently as September 2014. And when you look at those records, that information, even in the neurologist’s records who’s following him for the ADHD, those records up until September 2014, because you remember Dr. Cruse testified that his ARNP, his nurse practitioner, saw him on September 14 — I’m sorry, September 2014, and if you look at those records, what are the complaints? Are there complaints in there? Because we went through every visit with Dr. Munoz, that was probably painstaking to listen to it, but every one; full, complete exams. Full, complete exams, questioning of the mother, questioning of the child. And if you look at all of those records which are the physicians that she says these are the ones I rely on and I can still take him back to, they are not painting the same picture as of the end of 2014 that has been painted in this courtroom.  Even Mr. C’s, A.C.’s deposition that I read, because when I took his deposition we talked about football, being out in the sun. And his testimony was, if “I have my sunscreen on or I have my sleeve on then I don’t have problems with the sun. If I don’t, then I have burning and then I have itching.” And that’s why he was asked those questions. Those are the only problems he’s having at that time. Is if he doesn’t take the precautions then he has burning and itching, versus now we hear from A.C. and his mother, he takes showers all the time, constant itching all the time, weakness, problems when he’s doing barbells. That, I suggest to you if you look at what we heard here as far as his ongoing problems or complaints that he’s having, they do not fit the records of his treating doctors who are not involved in this litigation at all. At all. And they asked the parents or asked the mom, what problems do you have? They list it. They then go through as Dr. Munoz said and then they asked him, how is the skin? How is this? And then they examine those areas. No complaints, no abnormalities, no problems, no pain, no range of motion problems, nothing. And remember Dr. Shahnasarian actually agreed  with that. You know, he says, yeah, I know the records say that but I saw Dr. Martinez and he said do stretching so that tells me he’s got weakness. You heard Dr. Martinez testify. Dr. Martinez even testified that all of the things that we heard, and that was from an October visit that the attorneys were involved with sending him to Dr. Martinez and Dr. Tedder, those are the October 2014, even those visits don’t describe all the same problems we heard in this courtroom. They’re not consistent with it. What’s pictured in the non-litigation doctors shows he’s had a very good recovery, obviously other than the appearance of the scar. A very good recovery. And you heard them all testify, no restrictions, no limitations. Dr. Cruse himself testified that the only restriction he had — if you remember, plaintiff’s counsel went through and said, “Well, tell me about A.C.’s healing? And then he’d shift, he’d say, “Tell me about somebody”, not A.C., “somebody, how somebody would do five years down the road.” But he didn’t list it to A.C. and Dr. Cruse said well this could happen, that could happen. And then he went back to A.C., “Well, how about now with A.C.?” Do you remember the last questions in my  deposition to Dr. Cruse were, “Tell me within medical probability how he’s doing from the standpoint of his skin? You’re the expert in that area.” And he said, “Lifelong creams, lifelong protection from direct sun.” And I asked him, “Does that mean he can’t go in the sun? Does that mean he can’t be out there?” No. He said, because I asked him myself, “He can just wear sunscreen or he can wear the sleeve and then he can go in direct sun?” And then he says, “Or both.” So he didn’t say, no, no, no, even with those things on he can’t go in the sun, which is what the mother and A.C. said, even when I have all of this on I can’t go out in the sun. Which is why? Because Dr. Shahnasarian wants that. So he says, “Oh, yeah, he can’t work in the future in the sun because he’s having these problems.” You heard Dr. Cruse, his treating doctor, the one the mother still relies on and took him to in September of this year, not involved in this litigation at all. And he said the only restriction is no direct sunlight and if you’re going to be in the sun, covering or cream or both. He didn’t say don’t go out in it, you can’t be out in it, you have problems with temperatures. Those aren’t in the  medical records. I’d suggest they are not and please look at those if you have any hesitation. But I would suggest to you that witnesses that testified addressed those issues, which is why we went through that in great detail. Great detail. And that’s why I told you that, you know, it’s important what you hear up here, but it’s also important what’s in these pieces of paper. The pieces of paper tell a lot, too. There’s a lot of the evidence there. So ask yourself what is more realistic as far as A.C.’s current situation with that arm. And likely, likely, not possibility, not, well, the risk should go to Camden just because he’s hurt, but the probable past, the probable current and the probable future and consider the evidence in this case, the unbiased evidence of the treating doctors and the testimony from them as to what his limitations are, what his problems are, what his complaints are. As a matter of fact, Dr. Munoz, and you even saw him when I asked him. I said, “Dr. Munoz” — because I took his deposition January 21. And I said, “When’s the last time you saw her? Yesterday. Yesterday, for what? Came in for an evaluation.” So that was January 20th and he came in for evaluation.  I said, “Was that a scheduled visit? No, she just showed up. Did she make an appointment? No, she just showed up.” And then I said, “Did that strike you odd that she just showed up and you knew you’d have this deposition today?” And he goes, “Yeah, kind of.” “Is that because he was having a problem or is that because of litigation?” Let Dr. Munoz’s response to that question answer that question for you. But even then, January 20, 2015, all the complaints that we heard from Ms. Ramos and A.C. about the problems he’s having now, all the ones that Dr. Shahnasarian is relying on to support his and hold up his opinion, all those complaints, when Ms. Munoz [sic] comes in on January 20, 2015 to the doctor, who, if he can’t treat it is the one who sort of sends and refers out to everyone else, he’s a primary care doctor, where she has a chance to list all of the complaints. Like the ones she listed for Dr. Murphy, much broader than any other medical record we have seen as far as pain in the arm and the problems, I can’t play basketball. All of that, this January 20 when she comes in, “Here to be checked for follow-up after accident with treadmill on 03/21/11.” January — this was a month  and a half ago, “Here to be checked to be follow-up from the accident.” And what are the complaints? “Concerns of cracking of scar tissue with weather changes and tingling sensation after he writes.” That’s it. That’s the record. That’s it. It doesn’t say, and he has problems when he sweats out there and it hurts and he can’t be out in the sun with a covering on, he just can’t be out there because he can’t tolerate it, it’s too painful. He can’t lift barbells. Nothing’s in there. These are his records. This is his primary care record. Ask yourself, if he’s having all those problems now that we’ve heard from the testimony from Ms. Ramos and A.C., why aren’t they in the other records, but if nothing else, why aren’t they in this record, January 20th? They’re not in here. He does an examination at that point in time and the skin is normal. There’s no cracking. The skin is normal. But he says as he testified, “I sent him to a plastic surgeon.” Well, she had just been to the plastic surgeon a couple of months earlier and the plastic surgeon said the skin was normal, well healed, use the precautions. I would suggest to you that as far as any current limitations, physical limitations, problems,  inabilities, disabilities associated with this, that they are very minimal. The tingling certainly, Dr. Martinez, that’s undisputed, he has tingling and numbness in the area where the burn is. That’s undisputed. But that doesn’t mean he can’t be in the sun. That doesn’t mean he can’t go to the beach, that she has to take an umbrella out with. You heard A.C. testify, I go out and I play basketball with my buddies, I’ll wear a tank top. He doesn’t go around wearing long-sleeved shirts all the time because of embarrassment, he wears short-sleeved shirts. I mean, in here he looked very professional as he would when he comes in. But the picture, again, here versus the picture of the records, I suggest to you is different. I would please ask you, if you have any hesitation and did not get from the testimony, please take the time to look at the records and the various components of each of those records. As a matter of fact, even Dr. Martinez, who he went to for the problems with his — or I’m sorry, that the attorney sent him to, the neurologist, even those were limited, that didn’t describe all of the things we heard here in the courtroom. And he said, oh, I asked him — I have them write down the  problems but then I ask them about their problems. Remember I had him go through that, I said, “Well, tell me all the things they told you.” Didn’t list all these problems. Why wouldn’t you tell your doctors that if you’re really having those problems? Why wouldn’t you get medications filled and if you were really having that problem and you’re concerned about it. And that is not in any way to say that Ms. Ramos has not done a tremendous job with her son, because of her efforts, I think we’ve heard, he got the recovery that he got. She did a tremendous amount. So please don’t take that in any way that I’m saying that she did not do what she should be doing because by all accounts, by all accounts, he would not have the results he has had she not been the diligent mom she has been. So I don’t want you to have that impression at all and I’m not trying to say that at all. But as we sit here four years later trying to project into the future, I’d ask you to consider these things that I’m telling you as far as what his medical situation. That gets us on the verdict form. So as far as, like I said, pain and suffering for the scarring and that related in the numbness and tingling there, what  is reasonable is what you should go with based on your own collective and personal experiences. I will not try to go suggest a number, again, I’d be making up a number. No one testified as to a number for that, so rely on evidence, not my arguments. But the other part of the future medicals, yes, you can take the $50 a month, multiply that times his lifetime and that would be the appropriate amount for that, because he’s going to need those creams the rest of his life. There’s no disputing that whatsoever. When we get to loss of future earning capacity, loss of future earning capacity, counsel says that unrebutted up here. That’s not unrebutted. What we did was we went through with Dr. Shahnasarian. And remember Dr. Shahnasarian, Dr. Shahnasarian, number one, is not a doctor, he’s not medical doctor. And what was interesting, and I suggest to you that if you look at the evidence and look at his testimony here, you know, Dr. Shahnasarian that basically he says you have to look at all the information. And you remember Mr. Diaz questioning him and saying, “Oh, Mr. Crotts says just look at medical records.” And he said, “Mr. Crotts wants you to ignore what the mom and son say.” And he said, “No,  I’ve got to look at all the totality of all the information to make my decisions.” And based on all that he says that A.C., although somewhat interesting, contrary to what counsel’s comment was during opening — closing arguments a moment ago, when he started off talking about the embarrassment and the problems, potentially emotional problems A.C. may have in the future, remember what he said? He said, “The emotional problems he would have now and when he’s in college.” When he’s in college. And why is that important? Because Dr. Shahnasarian, to support his opinions here says, you know what? I know he’s only 14 and I know he has a mother who’s very diligent, who obviously is able to get him through some pretty chaotic, horrible things, but he says, I’m going to look at the mother’s background and I’m going to say, well, she’s kind of a laborer-type person herself and not much education. I’m going to look at the father, he passed away, but I’m going to look at his background and say he’s kind of a laborer and I’m pretty much going to say I can look in my crystal ball and I’m going to take A.C. at 14, the same young man that you saw testify here with his looks, attractive young man I suggest to you, well spoken, nice voice, good  presence about him, and say, I’m going to say that this boy is never going to do anything other than be a laborer and maybe get on a roof and work in hot tar, he’s going to work in a hot un-air-conditioned warehouse somewhere but he’s limited. And he’s either going to drop out sometime between 9th grade and 12th grade, best in his life he’s maybe going to get an GED or graduate from high school. That’s the best he’s ever going to do. And I, as Dr. Shahnasarian, can say that based on all the evidence that that’s what he’s going to accomplish in life, that’s the best he’s going to be able to do. And that’s fine, but is that what the evidence shows he’s likely to accomplish? With the help of his mother, with the help of the school system who has an individual plan for him to help him accomplish his goals with school, getting treatment from the doctor for the ADHD; does that paint a picture of someone who is never ever going to achieve more than Dr. Shahnasarian puts on him. And by the way, who disagrees with Dr. Shahnasarian? Is it Troy? You know who disagrees? Ms. Ramos disagrees. I asked her, I said, “What do you hope for your son? Do you hope that he graduates from high school?” “Yes.” “Do you  hope that he’s going to go to college?” “Yes.” And then I changed and I asked it a different way, “Do you expect, expect that that’s what he’s going to do?” “Absolutely, yes.” I asked A.C. the same questions and he agreed with that, too. They don’t believe what Dr. Shahnasarian is saying. And why is Dr. Shahnasarian saying that? Because he wants to say, oh, well, when I look at all this information I can now say that he’s got this sort of random 10 to 20 percent inability to get a job or keep a job or get promotions. And when I really dug down with him on that, and this is why the, could and possible and probable become important, I wrote down the notes here. He said, “Well, as far as future jobs.” And I said, “Are you saying that he’s going to have 10 to 20 percent less jobs to get or when he gets a job he’s going to get paid 10 to 20 percent less money?” What is this 10 to 20 percent you call it? I mean, what does that mean, because once he gets hired, doesn’t he have the job? So when he gets hired for that wage is he not — are they going to pay him 10 to 20 percent less that day because he’s got a burn? And he said, “well” — and he answered these words, “he could need accommodations that would hamper his job performance.  He may have exacerbations. He may have bony problems. He could be vulnerable to a layoff. He could face employer bias.” So these are all of the things he thought of. But what’s the word there? Could. May. Might. Possible. Reasonable degree of medical and vocational rehabilitation probability. And he knows the distinction because I asked him in the video. You know the difference in those words, he didn’t use these carelessly, he understood, I suggest to you. And this is what he’s relied upon, all those things to say that, you know, even when he gets a job, he’s probably not going to be able to keep it, they’re going to hold him back. He’s not going to get overtime like other people get because of his disability. And I would suggest to you, if you look at the medical records again and plug those in to Dr. Shahnasarian’s testimony, Dr. Shahnasarian agreed and he admitted, the records didn’t support the complaints that he was relying upon to say that A.C. is not going to be able to do any better than he can four years from now when he turns 18 for the rest of his life until he’s 64, 65 years old. And look at his own form, and that’s in the evidence, it’s a four-paged form that he was so proud  of that he told you about, that he’s written the book and he created this form. The form in his instruction, he said, oh, you have to read the instructions to understand the instructions. Yeah, well, he doesn’t have to read them and understand them because he wrote the book. He wrote the form. And it says, “Pick a number.” If you remember it was kind of — it might have seemed silly, I was going through the zero and the one and the two and the three, you’re supposed to pick a number. He couldn’t pick a number because he didn’t know the information. So he went from zero, which means no disability, to two. And you’ll see the scale in there, look at it and see. You’re supposed to pick a number and then come up with the 10 to 20 percent. He’s got three different options here. One option is a left-hand column, which is zero. It’s zero: No, disability, no impairment. And then he’s got it all the way out to some of these down to the right where he’s put other ones in. But if you look at those columns, it’s easy to see when you’re — understand when you’re seeing them, he’s even ambivalent there because one scenario has, no, all zeros. And what does he write in his little comments? You’ll see it, question mark,  “Depends on future issues, bone growth,” things like that. But, again, we can’t deal with possible things in the future. And I said, “Do you have any medical records, information since you did that report that changes this?” He said, “No.” So I would suggest to you if you’re going to look at Dr. Shahnasarian, do what Dr. Shahnasarian said. Do what he said. Look at everything in the whole. Look at all the aspects of it. Because while he says that, his opinions appear to discount the medical records, his opinions, as far as what A.C. can and can’t do in the sun, appear to disagree with what Dr. Cruse has testified is that A.C.’s own treating doctor as far as disabilities, Dr. Shahnasarian agrees that if he looks at the school records that it’s not showing — he says, “Well, informally they were doing this.” And I said, “Doctor, they’ve got a whole” — it’s called an IEP plan and they write up, they get comments from the teachers, counselors, A.C.’s mom, lists medical problems, lists needs that he has. I said, “Doctor, you’ve looked at those records for 2013 and 2014, do they show any of these problems that you’re relying on here? Is it in there?” And he goes, “Well, no, but I think they were doing these things informally  because he was having problems.” It’s not in the records. But the guy who says rely on everything, all he wanted to rely on was the information that he got from the mother and A.C. when he interviewed him in the last couple of months and came up with his opinion. So when I read the believability of witnesses, it says, “You can accept or reject an expert witness’s testimony based on all of the evidence in this case.” And I would suggest to you, his opinions are not supported by the evidence, they’re not supported by what you observed of this young man when you were in here — when he was in here, it’s not consistent of how his mother presents and the life she has led and the accomplishments she’s had, and it’s not consistent with her own expectations of A.C. as to what he’s going to accomplish to have available to him in the future. And counsel says, well, you know, if you look at the numbers maybe if he goes to college maybe it’s a different loss. Did we hear — I mean, I assume he’s anticipating what my argument is going to be. Did we hear Dr. Shahnasarian say, you know, if he gets in college it’s going to be a different loss.  There’s no testimony about that, that was counsel just kind of throwing that out there, well, he might still have a loss. I would suggest to you the evidence does not support what Dr. Shahnasarian said and you should discard that as an element of damage in this case. The young man the evidence supported is going to have whatever career he chooses to do and it is not going to be limited to any significant degree, if at all, certainly not 10 to 20 percent, by the problems with his arm. He’s going to be able to accomplish what he wants to be able to accomplish, and I would suggest to you the evidence supports that. And I am just about done here so you guys will be done listening to me. And, again, always a double-edged sword, you don’t want to talk about numbers, because if I talk about numbers then there’s maybe a thought that, well, he must feel that we should award this because he’s talking about numbers. If I don’t talk about them then in rebuttal I’m probably going to hear, well, Troy didn’t say anything about Ms. Mulder’s numbers so therefore he must agree with the numbers. I suggest to you if you’re going to award some damages for some future loss of earning capacity,  consider the numbers that were by Ms. Mulder and Dr. Durham who came in and testified. I think Dr. Durham’s numbers were between $128- and $212,000. But he said, you know, I’m not vouching for whether or not he has a loss of capacity to work in the future because I’m not a doctor, I’m not a medical doctor, I’m not a vocational person, so he has no opinions. He’s plugging in numbers, but what is he saying, he’s looking at all the factors: Taxes, social security on both sides of it, reducing it at the present value to say what’s a reasonable figure for that if we took a 15 percent, somewhere in the middle there. So that was that figure that he gave, the $128,000 to 212. By saying that, I’m not suggesting that that should be awarded because our position in this case is that the evidence in this case does not support an award for that element. That doesn’t mean that you don’t award things for the scarring and the appearance and the harm done by that and the problems he’s going to have with that for the rest of his life just for having to live with it, whatever that might be. Whatever is supported by the evidence. Now I’m going to go ahead and sit down. I don’t have an opportunity to come back up here. And, you  know, if we did, as I said earlier in the trial, plaintiff goes first, I go second. Now the problem is, he gets to go third, so he gets one more shot at you, I don’t. And I’m sure you all have figured out at this point in time that if I had a chance to come back up here, I could come up and talk some more, and as soon as I did that he’d be back up here going, yeah, but what? That’s what we do. We have all this information in our head, and I know I’m just talking fast and throwing a lot at you, but please take the time to review the information, take the time to talk about it. And whatever is said in rebuttal, when they come back up to finish up, what I would ask of you, at some point during your deliberations, stop, listen to what he says, and then ask yourself, is there something in the records? Is there something from the testimony on here? Is there something from testimony here that would respond to what he says when he comes back up here, and if you’ll do that, then I don’t need to come back up. I don’t need to come back up because you would have already asked the question. So I very much appreciate your time and your patience, your service here. It’s difficult to take you out of your lives, it’s difficult for us and we  do this for a living. So thank you for your attention. Thank you, Your Honor.

THE COURT: Thank you.

POWELL: Starting back, it’s not in the records, it’s not in the records, it’s not in the records. Where are the records from Camden that kept track of how many times kids were in the gym? Where are the records that kept track of how many times Mr. Ruiz said, hey, we’ve got to deal with this problem? Where are the records from Camden that says, here’s what we do, here’s how we’re going to anticipate these problems? They’ve got lots of properties. There’s no records that were brought into here at all from Camden that talked about protective kids, managing the work site, making sure that when we’re doing all these repairs that some worker doesn’t take a bucket and hold the door open to the gym and allow some ten-year-old kids to go in there and play. I wanted to talk about — Mr. Crotts started off about, we’re not at fault, negligence, instruction. It’s important to say that failing to do something that a reasonable careful person would do under like circumstances. And when it says person, it means corporation as well. So when they fail to do something that a reasonably careful corporation would do under like circumstances, that’s negligence. When they don’t have systems in place, or they may have them in place and they don’t follow them, then they are negligent. They are not doing what is proper. The next thing is negligence of a child. What’s reasonable on the part of a child, same age, mental capacity, intelligence, training and experience would do under like circumstances? Ten-year-old kids want to have fun, they want to play. Hey, it’s hot outside, let’s go into an air-conditioned spot. You know what? They could have gone into the air-conditioned bathroom at the clubhouse, they could have just gone in the clubhouse. They’ve been in there a million times and it’s really boring. They could go to their own apartment, they could go to a friend’s house. They could go to a lot of places to get air conditioning. They saw that cracked-open door and they were like, wow, check it out, we got the keys to the funhouse today, let’s go in there and see what we can find. And then they went and they found the treadmill that caused a lot of injuries. And we talked a little bit about causation, and in this case there’s two ways that causation can happen. One is because in a natural continuous  sequence we didn’t kick kids out, we didn’t report it, we didn’t make sure that our vendors knew to not put a bucket near the door, we didn’t do what was necessary to keep kids out. That’s one part. Concurring cause is, you know what, their negligence doesn’t have to be the only cause. And let me tell you, it is totally outside of the box for them to suggest that anyone else is responsible for the damages caused to A.C., totally outside of the box. Because this law says that it could be some other negligence that contributes substantially. So when their vendor opens the door and puts a bucket there and walks away, that is concurring cause. You’ll have these, you get to read these over and over and over. And it’s that cause that leads to the injuries, and you’re going to have all these pictures. You’re going to see that these damages were all caused by the negligence of Camden properties. It’s a broken-down system. He talks about texting and driving as being dangerous. Well, just having a paint bucket in a door is dangerous. And talk about what reasonable people do, it is totally unreasonable to tell a parent that the door to a dangerous gym will always be locked and secured.  And here’s a key, Ms. Ramos. Here’s a key, make sure that you don’t let anyone in there because we’re going to make sure too. And then during a construction project, they don’t tell the people in there, hey, this door is locked for a reason and we want to keep it locked, and if you put a bucket in the door someone might go in there and someone might get hurt. They just forgot that part, and it’s totally unreasonable. So when we talked about the reasonable standard, think about what is really reasonable about protecting a gym. How did the bucket get there? That was another interesting point. Well, holy cow, we know with 100-percent certainty that everyone in the whole courtroom agrees that construction was going on the whole time. Let’s talk about the future medical treatment, Dr. Martinez. What’s interesting is the word medication may have got a little bit confused, because this is a prescription but it’s a cream, it’s a vitamin cream that goes on the arm, that’s what A.C. uses. That’s what we’re trying to do is to get vitamins to get the nerves to grow back, B-12. It’s a prescription medication that’s an ointment that’s a vitamin.  You know, Mr. Crotts used the term painting a picture. I guess, you know, Dr. Murphy was really the great guy who came in and said, look, let me show you where the injuries are. Let me show you how severe this is. Let me talk to you and show you where the fractures are. You know, and then to contrast Dr. Murphy with Dr. Munoz, Dr. Munoz as you recall, the pediatrician. I asked him, I said, “Doctor, you have a lot of kids here, a lot of patients. You’re lucky if you get to spend three to five minutes with a patient at a time; is that right?” He goes, “If I’m lucky. I’m really busy. There’s always a lot going on.” Well, Dr. Murphy, and by the way, so did Dr. Martinez, have the luxury of saying I have been reserved an hour to sit down and talk to you and I want to know all about this stuff. I want you to tell me about this and that and this and that, and these doctors probed and probed and probed. And, of course, that’s why their records are going to be a lot more replete with facts. You know, poor Dr. Munoz is like, okay, I got somebody throwing up over here, I got diarrhea over there, I got a fever over here, I got to go, go, go. What’s your problem? You’re okay, you’re not going  to die, I’m going to move on to the next kid. It’s a stressful job that he has taking care of all those children. And we talked about what’s reasonable. Is it really reasonable to think that A.C. can really work in the sun? And just — always just carry extra clothes and stuff and change his life? Is that really reasonable? It’s unreasonable to suggest that he’s always — I don’t know, always have to be putting lotion on one arm or changing the way he clothes. If the defendant thinks that he can fully work out in the heat all the time in the Florida sun, I think that’s unreasonable. But that’s the providence of the jury, that’s why you guys are here. You’re to decide what’s reasonable. You know, they said, no one came up here and testified as to the value of pain and suffering. There’s a reason for that, it’s not a lot, that’s your job. We only present the evidence. You guys have to go back there and say, you know what, this is a little harm, he should get $2 an hour for this. This is a medium harm, he should get $5 an hour for this. This is a big harm, he should get 15 or $20 an hour. That’s how you sit down and calculate all of  those little harms. You know something that Mr. Crotts said was interesting, he goes, “His looks, attractive, well-spoken kid.” You know what? If he wanted to have been a model before this, that’s off the chart, he can’t do that, his arm. He is an attractive person, he’s a good kid, he’s doing everything in his power to be on the right track to stay in school. And I hope that he goes to college, it would be great. Dr. Shahnasarian said, you know what, he could be a doctor, he could be an astronaut, he could be a Nobel lawyer, but in my 30 years I’m going to tell you, the apple doesn’t fall that far from the tree. And Mr. Diaz asked him, “Hey, Dario [sic], do you like school?” “Yeah.” “Do you really like school?” “Not really.” Okay. I mean, he’s not someone who’s like aspiring to be an honor student, he’s doing his best to hang in there and he’s dealing with the problems that he has. And the fact that he has this new handicap foisted upon him is just additional things. This is why we’re here, we’re going to try and help what we can help, fix what we can fix. And the doctors have fixed everything they can fix so far and  now we have to make up for what can’t be helped and what can’t be fixed. You know the courtroom is an interesting place, and as lawyers on every side, we look at that, at our client and we do our best to help them, and if I said or did something that’s wrong or Mr. Diaz did, please don’t hold it against A.C. You know, we have asked him and his mom to do everything they can to help us present to you whatever we have, and the evidence that we’ve presented to you is — we can’t — we’ll never get to see how A.C. feels when he walks around a corner and wonders if people are talking behind his back. We’ll never feel how he thinks when he goes into his bedroom and he closes his door and locks it and sits there alone. We’ll never know the feelings that A.C. has when he says, boy, tomorrow I’m going to go to high school and there’s a couple of girls I’d like to talk to but I don’t how it’s going to go. Those are the intangible losses and pains that will forever follow A.C. because of their inability to keep the gym door locked. No one ever said that he couldn’t play basketball and he says he loves to play basketball, that’s one of his things. The only thing that  Dr. Murphy said is he feels pain and he gets tired more easily than anyone else. Dr. Murphy said, you know, the growth plates are right around the end of where these nails were, but I think they’re looking good. And after, you know, years and years of growth he probably won’t have arthritis but he could. When it comes to the mental anguish thing, these are the things that A.C. is going to carry around with him in his mind every day. I mean, there’s not going to be a day when he takes a shower and puts on a shirt and goes outside that he doesn’t think about his arm, think about that treadmill. This is the end. You’ve got all of the evidence, you’ve heard all of the arguments. You’re going to go back there and you’re going to fill out the verdict and you’re going to do the right thing and you’re going to make sure that, you know, we’ve got to make sure that we don’t say to apartment complexes, it’s okay if you don’t keep track of this stuff. It’s not. You’ve got to keep kids out of these places. It’s an attractive nuisance that they created, they developed and that is what injured A.C. and it’s the only reason we’re here today. We thank you very much for your time and  attention to this case. Thank you. (Jury instructions omitted at request of counsel.) (Jury retired to deliberate at 11:32 a.m.)”

 

After the jury deliberation for 4 hours, they arrived at the verdict in an amount of $2,686,370.00.

 

More Questions about Attractive Nuisances?

If you have any additional questions about child injury prevention and attractive nuisance cases, please feel free to call me, Matt Powell, at 1-844-MATTLAW.