Mediated Settlement $1,700,000
Case: Jeffrey v. Owner of Property
Court: New York Supreme
Judge: Hon. Judith Gische
Mediator: Miles J. Vigilante
Facts & Allegations
At about 1:30 p.m. on Aug. 1, 2009, plaintiff Jeffrey, a 63-year-old emergency transportation coordinator, was walking along Bleecker Street near its intersection with Christopher Street in Manhattan when he was caused to trip and fall on a 6-inch step protruding some 38 inches from property owned by Owner wherein he sustained injuries of the right dominant shoulder.
Jeffrey sued Owner alleging that a dangerous condition existed on the property and the defendants negligently failed to maintain the premises in a safe condition.
Jeffrey contended that the step was dangerous and a violation of 1938 and 1968 City Codes, which calls for any step greater than 18 inches to be surrounded by a 3-foot high railings. He also contended that a shadow from the building caused the step to become camouflaged.
Jeffrey further contended that the defendant had notice of the dangerous condition, but failed to address it. He further contended that it was negligent not to paint the step, or otherwise try to correct the dangerous condition, or notify the public of the step. He argued that the defendant company owned several buildings in the area, and therefore should have been aware of the dangerous condition, as it had existed since before the defendant took ownership of the building. He further argued that the code stipulated that any construction changes to the property must also address any code violations. He noted that plans for a sidewalk reconstruction outside the property did not include addressing the step, therefore the defendants negligently failed to take any action to fix the condition and violated the City Code. The plaintiff noted that while similar steps existed in the area, they were painted and therefore more easily noticeable and less dangerous. The plaintiff’s engineer planned to opine that the structure constituted a code violation, and a dangerous condition. The defendant contended that the step did not violate any City Codes, as the building had been constructed in the 19th Century, decades before the code was enacted, and the step had never been issued a violation from the City. The defendant further argued that the condition was safe, as nobody had fallen on the step since it was erected in the high-trafficked area more than 100 years before the accident. The company’s expert engineer planned to opine that the structure was not a code violation, and that the step was not addressed in the sidewalk reconstruction plan because the project dealt with drainage. The defendant’s planned to call a weather expert who planned to opine that the sun would not have caused a shadow as the plaintiff claimed at the time and date of the accident.
Both parties filed for summary judgment, and both motions were denied. The court however, did find that the defendants had violated the City’s building codes. The defendants filed an appeal of the court’s finding which was pending at the time of the mediated settlement.
Jeffrey sustained a four-part, comminuted and displaced fracture of the proximal humerus in his dominant, right shoulder. He also sustained a brachial plexus injury, which he claimed caused pain from his neck to his right wrist. He was also diagnosed with reflex sympathetic dystrophy.
Following the accident, he walked to the hotel he was staying at. He was then taken to St. Vincent’s Medical Center, where he underwent an open reduction, internal fixation procedure, which included the removal of bone and the installation of a titanium rod in his shoulder. He was discharged from the hospital on Aug. 9, 2009, and drove with his wife back to Florida. He continued treating with pain medications and physical therapy. He underwent 50 treatments over the next four months. He continued to complain of pain from his neck and wrist, and underwent a carpel tunnel release procedure to address the pain on Oct. 14, 2010. He claimed the procedure did not reduce the pain. Jeffrey returned to work on a part time basis in October, 2009, and then in December stopped working due to the pain. He was also unable to attend his daughter’s wedding (on the date of the accident), and unable to perform his regular daily living activities as a result of the pain and limitation. Jeffrey sought recovery for past and future pain and suffering, medical expenses and $300,000 in past and $300,000 in future lost wages. Plaintiff’s vocational rehabilitation expert opined that he would not be able to return to work. His treating physicians also opined that the injuries were permanent and significant. The defendants contended that Jeffrey was exaggerating his claims, and planned to show surveillance tapes of the plaintiff.
Defendant’s expert neurologist planned to opine that he had made a good recovery from the injuries, that he had no RSD, no nerve damage and no significant neurological injuries; however their hand surgery expert confirmed the claimed injuries. The defendant’s vocational rehabilitation expert planned to opine that Jeffrey could return to work, and the expert economist planned to opine that the plaintiff’s economic losses had been exaggerated.
The parties agreed to settle the case as an appeal of the Court’s decision finding that the defendant’s step violated the New York City Building Code was pending. The case settled for $1,700,000. Traveler’s tendered its $1,000,000 policy, and Chubb as the excess carrier provided the remaining $700,000.