Trial Guides is thrilled to announce a stellar verdict on behalf of our customers, Tim Garvey, Greg Bentley, and their team at Dormer Harpring. A Denver jury just returned an $8.26 million verdict under the Colorado Premises Liability Act in a case involving a catastrophic e-scooter crash and multiple liable parties.
Case Overview
In the spring of 2022, an e-scooter rider suffered life-changing injuries when he crashed as the result of a mangled sidewalk. He flipped over the handlebars, landing on his face. His injuries included a TBI, spinal cord injury, skull fracture, multiple cervical and lumbar herniations, a torn biceps tendon, and a fractured wrist. He spent ten days in the ICU, including three days spent in a medically induced coma.
The hazard that caused his injuries was the result of an incomplete construction job by MCI (a division of Verizon) and its general contractor (KGPCo). Just two months after the plaintiff was injured, KGPCo paid for the repairs to the sidewalk.
In 2020, MCI hired KGPCo to install fiber optic infrastructure throughout Denver. A portion of the project required KGPCo to install underground fiber optic cable. To do this, utility companies generally utilize the public right-of-way (including sidewalks), running conduit under and around sidewalks and installing "handholes"—hand-sized manholes—every 500 feet or so. This specific project was a little over half a mile long; the permit and plans indicated the project ended at an existing handhole in front of the plaintiff's apartment complex.
However, the plans were wrong; there was no existing handhole where the project was set to end. Because of that, KGPCo installed a handhole at the project's termination point, and it put the handhole into the sidewalk instead of the grass. To do so, the sidewalk had to be jackhammered.
Although the plans and permit clearly required KGPCo to replace all broken concrete, the concrete was put back together like a jigsaw puzzle. The broken concrete remained like that for a year-and-a-half—until Garvey’s client hit it with his scooter.
Potential Defendants
On behalf of the plaintiff, Garvey filed suit against MCI (as the project owner), KGPCo (as the general contractor), the engineering firm that drafted the original plans, the City of Denver (which owned the sidewalk) and the adjacent property owners. All defendants were defended under the general contractor's CGL policy. The court ordered mediation which went nowhere; and the plaintiff rejected a $1 million mediation settlement.
Pre-Trial Negotiations
Shortly before trial, Garvey settled with Denver, so trial went forward against MCI and KGPCo—both of whom pointed the finger at Denver and a subcontractor, Trace, as non-parties at fault.
On the day before trial, the defendants’ insurer offered to settle for $3.5 million When that offer was rejected, it offered a high/low of $1 million and $4 million. The plaintiff stood strong and trusted the jury. When the defense was arguing its directed verdict, the insurer withdrew all settlement offers. Then, after closing arguments, the insurer renewed its offer to settle for $3.5 million, saying that was its last and best offer. Again, the plaintiff rejected the offer.
The Defense’s Liability Challenge
Shortly before trial, the defense tried to get the court to determine that the plaintiff was a trespasser because Denver has an ordinance prohibiting scooters on sidewalks. Garvey and his co-counsel, Greg Bentley, presented evidence that Denver's bike map indicated this stretch of sidewalk was a designated "Shared Use Sidewalk." Even though Denver was a defendant, it never presented any real evidence to contest that fact. The defendants simply suggested that the sidewalk on the other side of the street was the shared use sidewalk.
Ultimately, the Court determined that the plaintiff was an “invitee” with respect to Denver, and a “licensee” with respect to MCI and KGPCo. That meant the plaintiff’s team had to prove actual knowledge of the danger, which the defendants denied throughout litigation and trial.
Trial Guides Titles in Action
Garvey considers Nick Rowley, Keith Mitnik, and Rick Friedman mentors, and has attended seminars taught by each of them. “[They] have influenced me throughout my career, and their ideas are always front of mind during trial,” he says, and cites Trial by Human as the book that changed the trajectory of his career. “When I read that book,” he says, “it made me realize I could be a lawyer and still be myself.” He cites Rules of the Road as being the book that helped him build a framework for working up his cases.
Trial by Human by Nick Rowley and Steven Halteman is available in both print and ebook.
Case Preparation
Garvey and Bentley did multiple focus groups with the help of Jessica Brylo, who also helped them with a "big data" study. The results of those definitely helped them focus our trial presentation and narrow their jury selection.
Garvey and Bentley leaned heavily on Jesse Wilson’s “Tell the Winning Story” approach for several aspects of case framing and witness preparation, and hired Wilson to help them prepare multiple clients for their trial testimony.
Trial Structure
Throughout the trial, Garvey and Bentley embraced Joe Fried's "Speed Trial" framework and ended up cutting five listed witnesses. Doing so kept the defense on their heels and got the case to the jury much quicker and with fewer cheap shots landed by the defense.
Opening Statement
Tim Garvey presented the opening statement. Garvey borrowed heavily from Jesse Wilson, whom he hired to help prepare witnesses to tell the winning story—as well as Eric Fong and Sach Oliver. He borrowed several teachings from David Ball’s Damages Evolving, and had a powerpoint presentation that was greatly enhanced by the work in Mastering PowerPoint in Trial.
The Verdict
The jury returned a verdict of $8.26 million for the plaintiff.
The parties stipulated to past economic damages of just over $455,000. The life care plan was $3.5 million to $3.8 million. The jury awarded the plaintiff’s requested amount of economic damages of $4.2 million, as well as noneconomic damages of $2 million. Finally, the jury awarded another $2 million for impairment and disfigurement.
“We greatly appreciate all the help we received from everybody on our trial team—Marcie Emch, Cindy Waller, Morgan Jewel, David Garber—and everybody in the community who assisted with numerous legal questions and issues leading up to and during trial,” says Garvey. “We are also grateful for the plaintiff’s trust in the Colorado jury system and for the opportunity to represent the plaintiff in this case.”