Sokol v. Rosciszewski
| Decision Date | 05 October 2016 |
| Docket Number | D067282 |
| Court | California Court of Appeals Court of Appeals |
| Parties | KAZIMIERZ SOKOL, Plaintiff and Appellant, v. ANNA K. ROSCISZEWSKI, Defendant and Respondent. |
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. 37-2013-00043497-CU-PO-CTL)
APPEAL from a judgment of the Superior Court of San Diego County, Timothy Taylor, Judge. Affirmed.
Law Office of Stephen L. Gordon and Stephen L. Gordon for Plaintiff and Appellant.
Law Office of Priscilla Slocom, Priscilla Slocum; Boles & Di Mascio and Roger L. Popeney for Defendant and Respondent.
Kazimierz Sokol brought suit for personal injuries arising from a fall down crumbling stairs outside his apartment. Anna K. Rosciszewski (his landlord), stipulated to her negligence. A trial was held and the jury determined Rosciszewski's negligence was a substantial cause of Sokol's injuries. The jury awarded Sokol damages of $36,474.89 for past medical expenses and $5,000 for past pain and suffering. The jury did not award Sokol any damages for future losses.
On appeal from a judgment entered on the jury's special verdict, Sokol contends the damages award is inadequate as a matter of law. Sokol further contends that he was prejudiced by the cumulative effect of the trial court's various actions.
Neither of Sokol's contentions has merit. We affirm the judgment.
On April 21, 2011, Sokol was walking down the stairs outside his second floor apartment when one of the steps crumbled. Sokol fell down several stairs to the cement floor at the bottom of the stairs, injuring his left foot, twisting his back and striking his left knee, left elbow and right shoulder on the railings. Sokol took pictures of the stairs on the day of his fall as proof that he did not stage the accident.
Shortly after the accident, Sokol went to the emergency room but left after waiting for hours without being treated. The next day, he went to an urgent care facility. The urgent care records did not note any swelling, bruising or discoloration of Sokol's left knee. Two days later, Sokol saw his family doctor, who advised him to see an orthopedist. Sokol left for Poland on May 25, 2011, and stayed there for three months. While in Poland, Sokol saw an orthopedist, participated in physical therapy, and obtained MRI's of his left foot, left knee and lower back.
Sokol filed his complaint on April 10, 2013. Trial began on October 6, 2014, and concluded on October 14, 2014.
Sokol came to the United States in 1986 as a political refugee. He was a member of the Solidarity movement in Poland, was arrested twice, spent time in jail, and left Poland in 1985 to avoid a third arrest. Sokol was very active since childhood, playing soccer, volleyball, basketball and ping pong, skiing and bicycling. From 2002 to 2011, Sokol played soccer and tennis, jet skied, snow skied, ran on the beach, biked "a lot" and lifted weights at his home gym. He also went fishing, which he can no longer do because he cannot walk on uneven surfaces. Sokol provided photographs of himself fishing, jet skiing, snow skiing and playing volleyball, but only the jet skiing photograph (from 2001 or 2002) was less than 20 years old. Sokol had more recent photographs on his computer, but the computer crashed, he was unable to retrieve the photographs and the computer is now in Poland with his brother.
Three of Sokol's friends testified at trial. One said Sokol used to dance and go on trips, but following the accident Sokol acts like an old man and is less patient, more nervous and "[m]ore miserable." Another said that prior to his injury Sokol used to perform volunteer work, go on canoe trips, dance and play volleyball. Sokol tried to play volleyball following his injury, but was no longer a reliable player and had become less social. The third friend testified that Sokol used to jet ski, snow ski, play soccer, camp and fish, but no longer participates in those activities due to his knee injury. In addition,the jury saw portions of videotaped depositions of Sokol's brother and another friend, but transcripts of their testimony were not provided on appeal.
In Poland, Sokol trained to become a master mechanic and worked as a mechanic for about eight years. Sokol then worked as a mechanic in San Diego intermittently from 1986 to 1999. By 1999, Sokol was making $17.50 per hour as a mechanic. Sokol quit his mechanic's job to work for himself repairing and reselling cars he bought at auction. He performed most of the work personally and would typically work on five cars per year, making around $15,000 annually. Sokol threw away any documentation related to the refurbished vehicles after a few months. The jury saw pictures of cars Sokol had repaired, but all were taken more than five years before his injury.
Beginning in 2001, Sokol worked maintaining properties he owned in Poland and made $400 to $500 per month on the properties. The properties were sold prior to the accident. Sokol also performed glass work on large sculptures, but the glass artist Sokol worked with died in 2004 and Sokol's part-time glass work ended. Prior to his accident, Sokol had intended to go back to full-time work as a mechanic sometime in 2011, and had planned to continue to refurbish auctioned vehicles.
Sokol was first evaluated by his medical expert, Jon Kelly, M.D., on November 23, 2011. Dr. Kelly examined the MRI's of Sokol's back, knee and ankle taken in Poland. The MRI of Sokol's left knee showed a ligament sprain, but Dr. Kelly could not correlate the injury to Sokol's ongoing pain because the ligament had healed. Dr. Kellydetermined Sokol had symptoms arising from the knee joint, including tendonitis. The MRI of Sokol's back showed traction spurs and evidence of degenerative disk disease. Dr. Kelly did not believe the fall caused Sokol's back conditions, but opined that the fall aggravated them. Regarding Sokol's ankle, Dr. Kelly diagnosed Sokol with a sprain and mild preexisting arthritis that became symptomatic as a result of the injury.
Dr. Kelly treated Sokol's back with physical therapy and nonsteroidal anti-inflammatory agents. Dr. Kelly considered giving Sokol localized injections in his back for pain, but did not do so. Dr. Kelly treated Sokol's knee with oral medications (steroidal and nonsteroidal), three viscosupplementation injections and physical therapy. Despite the treatments, Sokol continued to complain of pain and swelling in his knee after activities. Dr. Kelly never observed any activity-related swelling.
Dr. Kelly performed arthroscopic surgery on Sokol's left knee. Dr. Kelly found: (1) thickening of the joint lining, which could be caused by trauma or other things; (2) loss of cartilage behind the knee cap, which could be caused by trauma but "looked like it had been there for a while" and "is not uncommon as individuals age"; and (3) a condyle cartilage injury Dr. Kelly believed was caused by the fall because it was in an atypical area and looked different than a typical chronic degenerative injury. During the surgery, Dr. Kelly tried to debride the condral1 defect in Sokol's knee.
Dr. Kelly believed Sokol's pain was caused by the combination of the knee cap cartilage loss and the condyle defect. Dr. Kelly opined that Sokol's knee would not getbetter because the surgery did not resolve the pain and Sokol's condition had not improved in over three and a half years, despite treatment. Dr. Kelly recommended Sokol avoid kneeling on his left knee, impact activities (such as jogging), walking on uneven ground, squatting and prolonged walking. Dr. Kelly testified that being a mechanic was not a reasonable occupation for Sokol "primarily because it requires kneeling." Dr. Kelly also opined that the degenerative condition in Sokol's lower back would require restrictions on running, bending and certain types of lifting. Sokol could perform sedentary work if he could get up and move around when his back acts up and had a seat that would allow him to extend his knee beyond a 90-degree angle.
On cross-examination, Dr. Kelly admitted that Sokol displayed full range of motion in his knee and back, and that he had never observed swelling or fluid in Sokol's knee during any time he saw him, "other than in the post-op period or subsequent to the injections that I provided." In reviewing photographs taken during Sokol's knee arthroscopy, Dr. Kelly noted in his report that Sokol's symptoms "are much greater than what the photographs would suggest" and also noted that the "pain and pathology do not have a direct correlation." In addition, regarding Sokol's back injury, Dr. Kelly admitted he had not recorded any complaints of back pain after Sokol's first visit on November 23, 2011. Dr. Kelly could not recommend any further treatment that would benefit Sokol.
Sokol testified that his left knee hurts if he stands for more than 10 or 15 minutes or walks more than 60 or 80 yards (approximately two to three minutes). He cannot squat, crouch or put his full weight on his left knee when kneeling, and needs to usesupport to pull himself up from a kneeling position. Sokol has a knee brace that helps "[a] lot" and he wears it "almost on a daily basis."
In the opinion of Raymond Vance, M.D., Rosciszewski's medical expert, Sokol had incurred a blunt force or spraining injury to his knee and low back due to his fall. Regarding the knee, there was no evidence of any ligament tear and no remaining ligament injury. Dr. Vance characterized the condyle cartilage defect as a commonplace abnormality associated with aging that could not be attributed to the...
To continue reading
Request your trial