Gloucester woman was disabled
By Peter Vieth
Published: February 6, 2013
Republished from Virginia Lawyers Weekly
A disabled Gloucester County woman has won a record-tying $5 million verdict for a fall in a supermarket.
But her path to that victory wasn’t easy – she was shut out by the first jury she faced and needed a trip to the Supreme Court of Virginia to gain a second trial of her claim.
Ella Cousins was 64 years old when she was knocked to the floor at her hometown Food Lion store in 2006. She suffered severe traumatic brain injury and now requires round the clock assistance, according to her lawyer, P. Christopher Guedri of Richmond.
Her bid for recovery fell short in a 2009 Gloucester County jury trial – the jurors concluded she was at fault for failing to see a dolly loaded with merchandise that collided with her shopping cart.
The Supreme Court provided the opportunity for a second trial by reversing the defense verdict in 2012. “We got a second bite of the apple and, fortunately, this time we did not choke on it,” said Guedri, commenting on the Jan. 31 verdict for Cousins.
The key to the turnaround may have been a series of photographs made by an in-store security camera. Over Guedri’s objection, the defense used those photographs in the first trial to argue Cousins should have seen the approaching stock cart that knocked her down.
On appeal, Cousins argued the judge should not have allowed the jury to see the pictures. The series of grainy, still photographs – taken several seconds apart – failed to show whether Cousins was keeping a proper lookout, she contended.
The Supreme Court, in a 4-2 decision, held the photos should not have been admitted because there was no evidence as to the accuracy of the time stamps. The court’s 2012 ruling came in an unpublished order: Cousins v. Food Lion LLC (VLW 012-6-043).
Food Lion’s lawyers sought to lay a bullet-proof foundation for those pictures when the case went back to Gloucester for a re-trial. They brought experts to testify about the accuracy of the time stamps, Guedri said.
Retired Circuit Judge Walter J. Ford, who presided at both trials, ruled once again that the jury should be allowed to see the surveillance photos.
Unable to keep the images out of court, Guedri said he decided to treat the photographs as if they were part of his case. Waiving any objection, he introduced the pictures as part of Cousins’ evidence. “I embraced that evidence rather than appearing to avoid it,” Guedri said.
At the first trial, Guedri said, defense attorneys told the jury that “Mr. Guedri doesn’t want you to see these images.” Adopting the photographs as his own evidence eliminated that defense tactic. “It gave the jury a different mindset, a different attitude,” he said.
Guedri said Food Lion lawyers had conceded the negligence of a company employee who was pushing a cart loaded with tubs of merchandise stacked above her head. Liability turned on whether Cousins herself failed to see an obvious hazard.
Cousins’ damages case was compelling, Guedri said. She had been a college-educated, gainfully employed woman. After the accident, with $211,000 in incurred medical expenses and requiring a life care plan valued at $2.6 million in 2013 dollars, Cousins is dependent on 24-hour-a-day “tag team” care provided by her daughter and granddaughter.
“They put their lives on hold to provide the care that they otherwise could not afford,” Guedri said.
Cousins’ IQ after the accident was measured at 69, her brain “at least severely impaired if not profoundly impaired,” Guedri said.
The case was tried over three days. Guedri said he rejected an offer of $1.25 million before the jury went out. Post-trial motions were pending at press time.
Food Lion LLC was represented by Kevin L. Keller of Norfolk and Jennifer A. Simon of Florida, according to Guedri. Neither Keller nor Simon responded to calls for comment as of press time.
One previous $5 million verdict was reported from Gloucester County. In 2010, Avery T. “Sandy” Waterman Jr. of Newport News won that amount for a high school student who suffered a brain injury in a schoolhouse assault.