OTLA Trial Lawyer Summer 2021

34 Trial Lawyer • Summer 2021 By Brigid Turner H aving tried dozens of sexual assault cases to juries, the first thing I noticed when trying a premises liability cases is the similar courtroom juxtaposi- tion: it is the victim/plaintiff who is on trial. There are many cultural reasons for this. In both types of cases, the plaintiff usually controls much of the circum- stances surrounding the events leading up to the incident. “Attribution error” bias shows a potential juror is more likely to cast blame on personality-based explanations as opposed to situational- based explanations. Also “defensive at- tribution bias” shows people tend to view themselves as smarter, faster and stronger than others. These biases result in the average juror believing they would have avoided being harmed and then cast Brigid Turner blame on the plaintiff. The sad reality is, you need an extremely likeable plaintiff and more extensive voir dire to bring to light and overcome these implicit biases. Ice case I first realized the similar dynamic when colleague TimWilliams and I tried a premises liability case here in Deschutes County (pre-pandemic). Our client had fallen on an icy parking lot where he was renting a commercial unit. The winter of 2016-2017 in Deschutes County had been, what we called, “Snow-maged- don,” because of the massive dumps of snow throughout the season, requiring extensive snow removal, shoveling, ice melt and a dearth of snow plows to ac- commodate the situation. Our client was an incredible plaintiff. He was a veteran who saw combat in 1993 in the Battle of Mogadishu in So- malia, known for the Black Hawk Down incident. He testified he had been wounded in battle, first stabbed in the shoulder with a shiv made out of shrap- nel. He then suffered a gunshot wound to his leg (not the same leg injured in our premises liability case). After his military service, our client and his wife moved to Bend to raise a family and start a small business. To- gether, they began an ice cream delivery service. When the weather was nice, they drove around residential neighborhoods in bright yellow delivery trucks playing a familiar song, inviting children to come enjoy ice cream treats and popsicles. They eventually expanded the busi- ness to include a party supply service and a party bus. The party supply service provides rentals of bouncy houses, cotton candy machines, bubble machines and other equipment for parents wanting to host exciting birthday parties for their children. Our client drove a bus for large groups of people, such as bachelorette parties and tourists, who seek an evening experiencing multiple local breweries, bars and restaurants without the hassle of coordinating taxis or designated driv- ers. Our client began leasing a 1,250 square feet commercial unit at an indus- trial park owned by the defendant. The lease included a provision stating the defendant would be responsible for snow removal in the parking lot. In the winter of 2016-2017, the defendant had snow removed from the parking just one time —January 9. By February, so much snow had fallen, and been left to melt and re- freeze over many nights, the entire park- ing lot consisted of hard packed snow covered by sheets of ice — particularly in the parking stalls of the lot. On February 9, 2017, as our client attempted to take some trash out to the dumpsters across the parking lot, he was unable to keep his balance on the slick ice. He slipped, twisting his right ankle causing complex fractures to his right How To Win When Your Client Falls on Ice Overcoming Juror Bias