West Virginia Record

CHARLESTON – A St. Albans man was awarded nearly $634,000 last week after slipping and falling on black ice at a car wash five years ago.

Danny K. Whittington broke his hip when he fell in a car wash bay at Toad's Car Wash Inc. in St. Albans on Jan. 9, 2001.

Whittington, who was 46 at the time of the incident, filed his lawsuit in 2002. After two days of testimony before Judge Irene Berger, the six-member Kanawha Circuit Court jury returned its verdict in a little over an hour, according to attorney Charles Hughes.

"With this case, the whole thing came down to the defense focusing on a floor radiant heating system," said Hughes, who was running his first solo trial. "The system there is embedded into the floor of the bay, and it uses antifreeze. It's supposed to keep ice melted."

Hughes, who works for the Daniels Law Firm in Charleston, said Toad's ran four car washes then, and the St. Albans location was the only one with this floor heating system.

"They tried to show the system was working properly," he said. "Yes, t was working properly mechanically. But it wasn't working efficiently."

Hughes said the defense team tried to paint the picture early on in the case that at 19 degrees, one should be careful when washing a vehicle.

"You can only be so careful around black ice," he said. "Our point was if you're going to be open and running a car wash in 19-degree weather, you have to protect your customers.

"Danny exercised care. He looked around. We had independent third-party testimony about the black ice. It was a film. You could see right through it. It wasn't immediately visible."

Whittington, who was a contract mail carrier for the U.S. Postal Service at the time, broke his left hip when he slipped and fell on the black ice.

"It was a subtrochanteric fracture of his left proximal femur," Hughes said. "That's a fracture that's right about where the joint is … at the ball of the hip. Doctor Philip Surface testified that it is one of worst kinds of hip fractures you can see. He said it takes a pretty severe fall.

"This wasn't just a hurt back or a twisted knee. It required plates and screws."

Hughes said Whittington was a healthy guy with strong, healthy bones. He also didn't have health insurance.

"He didn't have health insurance," Hughes said. "He had about $22,000 in medical bills in just a few months, and he knew he couldn't pay for it. He was making $9 per hour. So he stopped treating it. He didn't have prescriptions or physical therapy. He rehabilitated himself over the summer. Then, the Postal Service wouldn't take him back. They said they couldn't take the risk on him."

On the verdict form, the jury awarded $22,829.94 to Whittington for medical expenses to date, $11,000 for lost wages to date, $200,000 for mental and physical pain and suffering, $300,000 for annoyance and inconvenience and 100,000 for loss of enjoyment of life.

Hughes said Whittington still has some pain and discomfort.

"Danny is a good guy," he said. "I believed in him, and I believed in the case. This guy was hurt.

"I know slip-and-fall lawsuits have a negative connotation. But here, we only take work we believe in. And like in this case, you see the results."

Hughes, 34, also was happy to get a positive outcome for his client on his first solo trial.

"There is a degree of satisfaction of running something on your own from beginning to end," said Hughes, who graduated from Huntington East High School in 1990 and West Virginia University's College of Law in 2001 after working for years as a youth counselor.

"What I've learned over the last few years working with good attorneys is that you can't fake believing in something. If you really believe in something, it's going to come across to a jury. If you're faking it, someone is going to pick up on that."

Kanawha Circuit Court case number: 02-C-3107