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MARTIN v. BOARD OF JOHNSON COUNTY COMM'RS3/19/1993
This is a personal injury action brought by Laverne Martin against the Board of County Commissioners of Johnson County (Board), sitting as the governing body of the Johnson County Unified Wastewater Districts (District). After trial to a jury, a verdict was returned in favor of Martin in the amount of $283,764. The Board contends Martin's suit was barred by the
statute of limitations. The Board also contends the trial court erred in admitting testimony by Martin's expert witness, in submitting the case to the jury on the theory of res ipsa loquitur, and in denying the Board's motion for new trial.
On May 22, 1987, Martin was trimming a bush in her back yard while sitting on a manhole cover. The manhole collapsed, sending the cover, frame, and Martin into the manhole. Martin injured her right arm and the heel of her right foot in the fall. Because of her injuries, she was unable to climb out by using the rungs built into the wall of the manhole. Her only option was to stand on one leg and call for help. She was discovered approximately one-half hour later. According to Martin, although there was little or no sewage in the manhole when she fell, she shared the hole with a snake. She also was worried that she would not be rescued in time to take her heart medication.
After Martin was extricated from the manhole, she was admitted to the University of Kansas Medical Center, where she remained a patient for seven days. Martin suffered a fragmented fracture of her upper right arm and a fragmented fracture of her right heel bone. Her hip also apparently caused her pain. A cast was placed on Martin's right leg and her right arm was immobilized. Upon her release from the hospital, she recuperated at Delmar Gardens Nursing Center for approximately 40 days. During this period, she used a special wheelchair, had to be bathed and dressed, and, she alleges, was treated as though she were senile. When she returned home, Martin required the assistance of a visiting nurse for a period of several weeks. She received treatment for her ankle and hip into the fall of 1989.
Martin had numerous preexisting health problems, including heart problems dating back to 1975 when she had suffered a heart attack. In 1986, she suffered frequent episodes of chest pain. After undergoing cardiac catheterization and an unsuccessful angioplasty, she suffered a second heart attack in December 1986. After her second heart attack, Martin stopped working and began receiving disability benefits.
Martin also suffers from hypertension and has had a weight problem for many years. Her chronically dislocated right shoulder was surgically repaired in 1969. Martin stated she had limited mobility of her right shoulder or arm prior to the accident, but
that it worsened after the accident. Dr. Harry Overesch, Martin's medical expert, testified that she had preexisting arthritis in her right shoulder and that it would have probably progressed to some degree regardless of the fracture that resulted from the accident. Martin continues to have limited use of her shoulder and has difficulty walking as a result of her injuries. She has pain in her right heel and right shoulder and sometimes is required to use a cane to walk. Dr. Overesch acknowledged that Martin's weight may aggravate the discomfort. Martin continues to experience pain if a lot of pressure is applied to her right hip.
Martin's house and the manhole in her yard were built in the early 1950's, and Martin has lived in the house since it was built. As was typical, the manhole was built by a company hired by the landowner/developer. After construction of a sewer system, the system is examined and, if requirements
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