- Adele D – Broken Curb Causes Injuries to Pedestrian
- Willie E – Ice on Stairway Leads to Fall
- Anita E – Defective Steps Lead to Fall
- Stephen F – Delivery Man Falls at Warehouse
- Joanne G – Cellar Door Causes Fall
- A.H. – Fall on Snow in Courtyard
Adele and Wilbur D. v. State of New York Claim No. 76953, 9-Page Decision Filed 4/17/91 Judge Albert A. Blinder, Court of Claims, Manhattan.
DECISION: $170,000 for Adele D. for past and future pain and suffering, permanency, and medical expenses; $10,000 to Wilbur D. for loss of services, reduced to $85,000 and $5,000, respectively, for 50% comparative negligence of Clmt.
Clmt. Atty: Daniel P. Buttafuoco, Manhattan.
Deft. Atty: Frank J. Wenick, Asst. Atty. General.
Facts: Clmt., age 63 at the time, claimed that on 6/16/86, she tripped and fell on a broken curb in the parking lot of the Creedmoor Psychiatric Center in Queens. She claimed that she “stepped on something hard” and fell to the ground near the curb. Photographs of the curb were introduced by Clmt. which showed what the court described as “an advanced state of deterioration.” Decision at p. 2. Clmt., who wore bifocals, testified that she did not look down at her feet as she walked in the parking lot. Deft.’s plant superintendent testified that the condition shown in the photographs was known as “spalling,” a breakdown of paved surfaces caused by temperature changes and salt elements. He testified that although spalling had occurred recently, he had never noticed any spalling at all prior to the accident. The court determined that the crux of the matter was whether Deft. had notice of a defective condition in the curb and failed to take remedial action. Decision at p. 6, citing Gordon v. American Museum of Natural History, 67 N. Y.2d 836. The court found that there was no question that the curb was so seriously eroded that Deft. had to have known about it and should have taken proper steps to correct the defect. Decision at p. 6, citing Taylor v. New York City Transit Authority, 48 N.Y.2d 903,904; Blake v. City of Albany, 48 N.Y.2d 875; Batton v. Elghanayan, 43 N .Y .2d 898. The court pointed to the superintendent’s testimony that he noticed severe spalling a year and a half after the accident. The court found it impossible to believe that the curb just suddenly began to deteriorate. Decision at p. 6. Judge Blinder ruled that Deft. had constructive notice of the defect. Decision at p. 7.
It was likewise found that Clmt., who had been employed at Creedmoor for 25 years, should have known about the condition of the curb, that she should have exercised greater care in crossing it, and that she would have seen the defect if she had been paying attention to where she was walking. Judge Blinder therefore found that Clmt. was 50% comparatively negligent. Decision at p. 7, citing Weigand v. United Traction Company, 221 N.Y. 39.
Injuries: trimalleolar fracture of the right ankle requiring open reduction and internal fixation with a semi-tubular plate and seven screws and an interfragmentary screw applied to the fibula with a single malleolar screw placed on the other side of the fibula. The hardware, according to Clmt.’s expert, must remain in the leg permanently. He also testified that the ankle would deteriorate over time, that the scars on her ankle from the surgery would be permanent and that the ankle would continually swell and that Clmt. would experience permanent pain in the ankle. Clmt. testified that she can not walk long distances and that she must soak her foot every night. Her husband testified that she was no longer able to perform many of her household chores. The court awarded Clmt. $170,000 for pain and suffering, medical expenses, and permanency and awarded her husband $10,000 for his derivative claim. These awards were reduced to $85,000 and $5,000, respectively, for Clmt.’s comparative negligence. Decision at p. 9.
Clmt. Expert: Dr. Carl A. Weiss, orth. surg., Garden City.
SETTLEMENT: Willie E. v. Board of Education of the City of New York 3745/92 Date of Settlement 1/8/93 Kings Civil
Pltf. Atty: Mark T. Freeley of Daniel P. Buttafuoco, Mineola
This case settled during trial for $125,000 for injuries suffered by Pltf., a 51-year-old teacher, who slipped and fell at IS 390 on Park Place in Manhattan. Pltf. testified that on 1/5/88 at approximately 8:25 AM, she was descending the exterior cement steps of the school when she slipped and fell on a patch of smooth, clear ice. Pltf. contended that the custodian had just inspected the steps and told the janitorial staff to salt the stairway. Pltf. testified that after she fell, she noticed that there was no salt or sand on the steps. An eyewitness corroborated Pltf.’s testimony. Deft.’s custodian claimed that he had instructed his men to salt the steps and that they had followed his instructions.
Injuries: bimalleolar fracture of the right ankle requiring external fixation. Pltf. was placed in a plaster cast for 8 weeks. Pltf. claimed that she missed 11 months of work. Pltf. also claimed that she suffered from inflammation in the ankle and contended that she would probably develop traumatic arthritis.
SETTLEMENT: Anita E. v. Grenadier Realty Corp.; Sea Park East and West Houses, Inc.; Sea Park East Houses, Inc.; Spew Management Corp.; and Andsea Park East Co. 29528/94 Date of Settlement 2/5/98 Kings Supreme
Pltf. Atty: Mark T. Freeley of Daniel Buttafuoco & Assoc., Mineola
This action settled at jury selection for $200,000. Pltf., a 61-year- old home health care nurse, claimed that on 5/25/94 she tripped and fell on a defective step in her apartment located in Brooklyn. Defts. were the building managers. Pltf. claimed that part of the tread was missing from one of the steps, which caused her to fall. Pltf. contended that she had reported the defect to the main office prior to this accident. Defts. would have argued that since the stairs were in her own apartment, she should have been aware of the problem. Defts. also would have argued that they had no record of any complaints made prior to this accident. Deft. would have contended that there was a discrepancy between Pltf.’s account of the accident and a report given to her health care provider, which indicated that she was mopping when she fell.
Injuries: trimalleolar fracture of the left ankle treated with open reduction and internal fixation. Pltf. claimed that she is unable to work as a health care nurse due to her injuries. Defts. would have argued that Pltf. made an excellent recovery. Demonstrative evidence: photographs of the defect; photographs of the surgical scar of the ankle. Carrier: Zurich.
Pltf. Expert: Pltf. would have called Dr. Steven Ravich, treating orth. surg., Brooklyn.
Deft. Expert:Deft. would have called Dr. Raymond Koval, orth. surg., Elmhurst.
Steven and Joanne F. v. Royal Zenith; David Osieki; Prime Site Ltd.; Eli Goldberg; and Construction Unlimited, Inc. 11-day trial Verdict 9/22/93 Judge Maurice Harbater, Queens Supreme
VERDICT: Liability: Pltf. 10%; Deft. Royal Zenith 90% negligent (6/0). All other Defts. were dismissed. The case settled for $375,000. Jury: 3 male, 3 female.
Pltf. Atty: Daniel P. Buttafuoco of Buttafuoco & Associates, Mineola.
Deft. Atty: Robert R. Groezinger of Bivona & Cohen, Manhattan, for Royal Zenith
Regis E. Staley, Jr. of White, Quinlan, Staley & Ledwith, Garden City, for Osieki and Prime Site Ltd., John P. Humphreys of Michael F.X. Manning, Garden City, for Goldberg
Michael J. Lombardi of Johnston & McShane, Manhattan, for Construction Unlimited.
Facts: Pltf., a 24-year-old deli deliveryman, claimed that on 1/l4/89, a Saturday, he slipped and fell at Deft.’s warehouse in Lake Success. Royal Zenith was a tenant in the warehouse and had employees performing inventory work on the day of the incident. Pltf. claimed that the employees called his deli for a lunch order and he subsequently delivered two cold cut platters. He testified that he slipped on snow and ice on the steps of the rear entrance of the warehouse as he carried the two platters. Pltf. claimed that Defts. were negligent for failing to clear the icy condition.
Defts. contended that Pltf. was comparatively negligent and claimed that he should have carried one tray at a time up the steps. They also testified that Pltf. should have held onto the railing as he walked up the stairs. Injuries: torn medial meniscus of the right knee. Pltf. underwent three arthroscopic surgeries. He claimed that he suffered residual adhesions from the surgeries. Pltf. also claimed that he has a slight limp and permanent weakness in the knee. He testified that he was out of work for 4 and 1/2 years. Specials: Pltf. received a Workers’ Compensation lien of $102,000, of which $29,000 was for medical expenses. Demonstrative evidence: photographs of the area; model of knee; chart of knee. Offer: $100,000; demand: $650,000. Jury deliberation: 1 hour. Carrier: Union National Casualty.
Joanne and Robert G. v. J&F Ironworks v. Robert, Margat, and Rheinhard G. 27005-94 4-day trial Verdict 6/19/98 Queens Supreme
Judge: Arthur w. Jonschein
Verdict: Liability: Pltf. Joanne G. 30%; Robert G. 50%; J&F Ironworks 20% negligent (6/0). Subsequently settled on 6/22/98 for $ 95,000. Post-trial motions were denied. Jury: 3 male, 3 female.
Pltf. Atty: James V. Mattone of Daniel P. Buttafuoco & Assoc., Woodbury.
Deft. Atty: Joseph A. DePaula of Philip DeBellis, Melville, for Robert, Margat, and Rheinhard G., John F. Boland of Manning & Hughes, Garden City, for J&F Ironworks.
Facts: Pltf., age 33 (30% liable), claimed that on 8/6/93, she was injured when she tripped and fell over the lip of a cellar door at her home in Ridgewood. Pltf.’s husband, Robert (50% liable), was part owner of the house along with his parents, Defts. Margat and Rheinhard G. Pltf. and her husband lived in the basement of this multiple dwelling and were the designated managing agents. In 1990, Robert G. hired Deft. J&F Ironworks (20% liable) to install a cellar door for security and to prevent leaks. J&F designed, manufactured, and installed their own products. The model that was installed in Pltf.’s house had a lip to prevent water from entering, and was placed on top of an existing 6-inch concrete slab. Pltf. testified that she was carrying her 2-month-old infant when her foot caught on the lip of the door as she was entering the basement, and she fell. Pltf.’s engineer testified that the lip on the door was a defective condition and was a trip hazard. Defts. argued that Pltf. was negligent for failing to watch her step as she walked through the door. They argued that the door had been installed 3 years before the accident, and that Pltf. was aware of the lip.
Injuries: (not before the jury settled for $95,000 after the liability verdict) fractures of the right ankle, tibia, and fibula. Pltf. claimed that she still experiences pain in the leg. Demonstrative evidence: photograph of the cellar door and metal lip.
Herbert Braunstein, engineer, Brooklyn.
There was no expert testimony for Deft.
SETTLEMENT: A. and Kevin H. v. Glen Oaks Village Owners, Inc. 006327/94 Date of Settlement 9/29/97 Queens Supreme
Pltf. Atty: Mark T. Freeley of Daniel P. Buttafuoco & Assoc., Mineola.
This action settled for $200,000 before trial. Pltf., age 33 and unemployed, claimed that on 1/12/94, she slipped and fell on snow and ice in the courtyard walking area leading to her apartment at Deft.’s building complex located on Langston Ave. in Floral Park. Testimony indicated that there had been an ice storm on 1/7/94. Pltf. would have claimed that Deft. had sufficient time from the date of the storm to clear the walk areas, and would have contended that the sidewalks were haphazardly sprinkled with sand and that Deft. waited too long to apply the sand for it to be effective. Evidence would have been introduced that Deft.’s board of directors sent out a report to the tenants after the ice and snow storm, indicating that they were caught off-guard by the storm. The report stated that Deft. ran out of melting agents, and was unable to obtain supplies, necessitating the use of sand. Deft. would have argued that it did all that it could under the circumstances, considering the severity of the storm and resulting ice.
Injuries: fractured medial malleolus of the right ankle, treated with a cast. Pltf. subsequently developed deep vein thrombosis of the ankle. As a result, Pltf. is required to take Coumadin.
Pltf. Experts: Pltf. would have called Mark Kramer, meteorologist, Amityville; Dr. Ali Guy, physical and rehabilitative medicine, Manhattan.
Deft. Experts: Deft. would have called William Sherman, meteorologist, CompuWeather, Inc., Flushing; Dr. Leon Sultan, orth. surg., Franklin Square; Dr. David Eisenberg, neurologist, Woodside.