In one of the more unusual premises liability cases, Galloway Johnson Tompkins Burr & Smith attorneys Autumn George and Catherine Arpen secured a strategic dismissal through disciplined case management and timely enforcement of discovery obligations in the case our Jacksonville team dubbed “the attack of the avocado.”
The Core of the Case
In this case, Galloway represented a residential property owner in a lawsuit brought by a tenant who alleged that a one-pound avocado fell from a tree, struck him on the head, and then bounced off before shattering the rear windshield of his vehicle. The Plaintiff claimed they had suffered a traumatic brain injury.
A Compulsory Medical Examination (CME) was scheduled one month before trial and was fully coordinated with Plaintiff’s counsel, including the agreed-upon date, time, and location just 21 miles from the Plaintiff’s home and within his county of residence. Four days before the exam, Plaintiff’s counsel demanded that the defense cover transportation costs. No motion for protective order was filed, and our team advised that no law, rule, or order imposed such a requirement and warned that failure to appear would result in sanctions. The Plaintiff did not attend the CME.
Firm on the Facts
Galloway promptly moved to continue the trial. At the hearing, the judge initially indicated our motion was “dead on arrival.” However, upon learning of the Plaintiff’s willful noncompliance, the judge reversed course and granted the continuance, ordered the Plaintiff to pay the $2,000 CME cancellation fee within 15 days, and further directed Plaintiff’s counsel to arrange transportation for the rescheduled exam within 45 days. Despite the clear directive from the court, Plaintiff’s counsel renewed their transportation demand just two days after the order was entered. Autumn and Catherine again declined, and the Plaintiff again failed to appear.
Galloway immediately filed a motion for sanctions seeking dismissal or, alternatively, monetary sanctions and evidentiary limitations. At the hearing, the court asked whether the previously ordered $2,000 had been paid. It had not. After reviewing counsel’s contentions, the court dismissed the case without prejudice and reserved jurisdiction to award the now $4,000 in CME-related expenses.
Wins for Galloway are Grown, Not Given
Strategic enforcement of discovery rules, consistent follow-through, and prompt motion practice resulted in a full dismissal just weeks before trial. In premises liability cases like this one, Galloway proactively defends property owners and their insurers in a wide range of claims involving bodily injury and property damage. We provide aggressive representation with an emphasis on early evaluation, rapid response, and efficient resolution.
Meticulous, dedicated, and thorough, Catherine Arpen skillfully develops strong defense strategies on behalf of her clients, with an eye towards results that meet their business objectives, whether through settlement or litigation.
Autumn George brings a strategic approach to representing both carriers and private businesses, collaborating closely with clients to develop early assessments of exposure or liability and implement cost-effective defense strategies. Her clients value her sharp focus and timely communication, whether the best resolution involves a negotiated settlement or an aggressive trial defense.
Even in cases involving falling fruit, Galloway attorneys stay disciplined on the fundamentals. Communication, compliance, and accountability make all the difference.
