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Covarrubias v. Walt Disney World Co.6/9/2003
Plaintiff Ricardo Covarrubias appeals from a judgment in favor of defendant Walt Disney World Co., owner of Disneyland (defendant), on his premises liability and negligence action. He claims the court erred by denying further responses to discovery and by improperly answering a question posed by the jury during deliberations. We disagree and affirm.
FACTS
Then 23-year-old plaintiff, who is mentally retarded, tripped and injured himself on a visit to Disneyland with his mother, Rosa Covarrubias, and his brother, Carlos Covarrubias. Plaintiff was treated at defendant's first aid station and then remained at the park until it closed. He returned to the park the next day and several times thereafter.
Almost three months later, plaintiff was taken to Los Angeles County U.S.C. Medical Center. After an MRI disclosed a cyst on plaintiff's spinal cord, a surgeon removed it, going through the spinal cord to get to it. Since the surgery, plaintiff has been a paraplegic. Plaintiff's theory is that the fall at the park caused a herniated disk that led to the deterioration of his spinal cord, resulting in paraplegia.
In the complaint, plaintiff alleged he tripped in a hole on Main Street, fell, and injured his left knee, shoulder, and ankle. At the time of his injury , however, mother told the treating nurse that plaintiff "stepped off the curb and twisted his ankle." The nurse's report stated there was a slight swelling in defendant's right ankle, although there was no bruising; he could walk and bear weight. He was given a wheelchair and an ice pack. He refused Tylenol or a trip to a hospital to be examined by a doctor. When plaintiff finally went to the hospital three months later, mother also told them he had twisted his ankle after he tripped on a curb.
A major issue in the case is the existence of the hole. The alleged source of the hole, which plaintiff described as three inches deep and one foot in diameter, was one of several sleeves sunk into Main Street for use by acrobats during one of defendant's parades. The acrobats put their poles into the sleeves and then use the poles in their act. The sleeves were created by drilling 12-inch cores into the 40-year-old pavement, inserting 2-inch pole sleeves surrounded by rebar, and filling the remaining core with concrete; the sleeves and concrete were then flush with the pavement.
About 18 months after the accident, on a videotape shown to the jury, mother identified an exact spot on the pavement showing a 12- inch semicircular area of concrete as the location of the hole. Plaintiff contends this is where one of the sleeves had sunk into the ground, creating the hole into which he stepped.
Defendant maintains that the spot identified by mother did not exist at the time of the incident, but was created when it put in a storm drain under Main Street the year after plaintiff's accident. While cutting the concrete, one of the sleeves was accidentally damaged. As part of completing the drain, the sleeve was repaired, leaving the semi-circular mark which mother identified as the hole's location.
Plaintiff's expert, a civil engineer who is certified to test walking surfaces, took several core samples at the location of the alleged hole. He also tested the area around the sleeve which plaintiff claimed had sunk. He testified that in inserting the sleeves, defendant did not follow its engineering plans. The result, he concluded, was that only rock and sand supported the bottom five inches of the sleeve, which, over time, would be eroded by water. The evidence is unclear whether there actually was slippage.
Defendant's engineering expert testified that his e
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