TOPIC: PREMISES LIABILITY

TITLE: Landlord Found Liable For Tenant’s Injuries Sustained In Apartment Fire; Suit Alleged Locked Window Gate over Fire Escape and Lack of Smoke Detectors

RESULT: Jury verdict for the plaintiff, in the amount of $1,504,000. Award consisted of $400,000 for past pain and suffering, $500,000 for future pain and suffering, $39,000 for past loss of earnings, $312,000 for future loss of earnings, $103,000 for past medical expenses, and $150,000 for future medical expenses.

INJURY: Plaintiff suffered second and third degree burns over 46% of his body. He underwent six skin graft procedures and will require two more in the future. He sustained burns to his throat cartilage, which required placement of a permanent tracheotomy tube. The chemical burns to his lungs resulted in a substantial reduction in pulmonary capacity.

SUMMARY: A 30-year-old auto mechanic arrived home from work at approximately 11:00 p.m. He placed plaintains and sausages in a pot of water on a low flame, and went into his bedroom to watch a videotape while the food cooked. After some time, he became aware that the apartment was filling with smoke. When plaintiff went to the kitchen, he saw the top of the stove engulfed in flames. He first tried calling for help from the living room window, the only window that could be opened. He then went back to the kitchen and made five-six attempts to put out the fire with a five-gallon bucket filled with water drawn from the bathroom. Plaintiff then became overcome with smoke.

Suit was brought against the landlord. The subject apartment had been sublet by plaintiff from the tenant of record, without the landlord’s authority. An inspection by NYC Housing Preservation & Development Code Enforcement, defendant was cited for not providing a smoke detector in the unit and for permitting the tenant to have an unlawful, locked window gate in the kitchen, over the fire escape window. The violations were never certified as corrected. Members of the fire department testified that there was no smoke detector in the apartment, and that there was no question that the gate was locked at the time of the fire.

The managing agent and superin-tendent of the landlord testified that smoke detectors were installed when the tenant moved in, and reinstalled on two occasions after the violations. The tenant of record testified that she had two smoke detectors and that her gate was not kept locked.

The defense further contended that plaintiff was intoxicated at the time of the fire because hospital tests taken at 2:57 a.m. showed a blood alcohol level of .078. Plaintiff’s physician testified that this was a trivial amount, and that immediately after the burn the body becomes hypo-metabolic, therefore, from the time of the burn to the time of the test, little metabolism of alcohol would have occurred. The testimony of the defendant’s toxicologist — stating that the level was higher when extrapolated to the time of the fire — was disputed.

SETTLEMENT NEGOTIATIONS: Demand: $675,000. Offer: $300,000.

COURT: New York Cty. Supreme Ct., N.Y.

TOPIC: Workplace Injuries

RESULT: $ 2.3 million settlement, reached at the close of the plaintiff’s case. The settlement consisted of $ 1,950,000 from CBS Broadcasting, and $ 350,000 from Alexander Wolf & Son.

INJURY: The plaintiff sustained a shattered left calcaneus, or heel. He underwent reconstructive surgery, and suffered chronic pain thereafter. In December, 2002, he underwent a second surgery, in an effort to reduce his pain. All hardware was removed, and the subtalar joint, between the top of the calcaneus and the talus bone above was fused. He developed extensive arthritis in the left ankle, and his prognosis was and is guarded. He then developed meniscus tears due to an altered gait, and underwent arthroscopic knee surgery in 2004.

At the time of the accident, plaintiff was earning approximately $ 90,000 per year, with additional benefits. He has not worked since the accident and his job prospects, as both plaintiff’s and defendant’s vocational experts agreed, were limited in earning potential.

Workers’ compensation lien in excess of $ 100,000, reduced pursuant to the Kelly decision. Loss of earnings were projected in excess of $ 2 million.

SUMMARY: The male plaintiff, then 39 years of age, was working as a union journeyman for Petrocelli Electric, Inc. at the CBS facility in New York, N.Y.

The jobsite was owned by CBS Broadcasting, Inc. and was part of a Y2K power upgrade project. CBS hired Alexander Wolf & Son to perform the structural work and Petrocelli Electric to perform the electrical work.

The plaintiff was working upon a mezzanine platform, located between the basement and lobby floors. The mezzanine ended in a platform that was approximately 12 feet high and overlooked the basement hallway below; cinderblock walls of the hallway extended outward, perpendicular to the ends of the platform. At the edge of the platform, Alexander Wolf & Son had recently installed a double-set of swinging doors which opened inward, and were double-wide to permit delivery of large equipment. Prior to the doors’ installation, the platform was open-ended. On the adjacent wall, on the left side of the platform, was an affixed, permanent iron ladder which had been used to ascend and descend from the platform, long before the doors were ever installed. On the date of the accident, the ladder was still being used by workers on the mezzanine, who would climb onto the ladder, through the open doors.

At the time of the accident, the plaintiff was leaving the mezzanine, to get equipment located on the basement level. Both of the two staircases which provided access to the mezzanine (in addition to the ladder) were blocked with equipment and workers from other trades. The plaintiff used the ladder. The doors which opened onto the platform’s edge were chocked open. As plaintiff began to descend, the door nearest the ladder came loose, either due to its having been struck by a passerby, or of its own volition. Since door closure devices had not as yet been installed, as plaintiff alleged the heavy door swung freely, striking Parker as he was midway between the platform and the ladder, and propelling him to the ground below.

COURT: New York Cty. Sup. Ct. New York

Topic: SEC. 240 LABOR LAW – ABSENCE OF FALL PROTECTION ON STAIRWAY USED AS WORK PLATFORM DURING HOISTING OF MATERIALS AS EXISTING LOFT BUILDING WAS BEING ALTERED TO RESIDENTIAL CONDOMINIUMS – COMMINUTED BURST FRACTURE AT C-6 – PERMANENT PARAPLEGIA

Result: $ 7,250,000 Recovery

County: Kings County

Facts: A male plaintiff laborer, age 31 at the time, who was working on a former loft building that was being converted into residential condominiums, contended that he was not provided fall protection while engaged in assisting the hoisting of metal sheeting through the center portion of the staircase.  The plaintiff contended that while he was standing approximately 12 feet above the floor, a piece of sheeting slipped from the hoist and knocked him to the ground below.  The plaintiff suffered a comminuted burst fracture at C-6 which has left him a permanent paraplegic.

The evidence disclosed that the metal sheeting was being hoisted through openings that had been made in the center of the staircase at each level.  The plaintiff moved for summary judgment under Labor Law Sec. 240.  The defendant and third-party defendant employer denied that Sec. 240 should apply in this situation involving a permanent stairway and crossed-moved for summary judgment.  The plaintiff argued during the motion that applicable case law supported his position that Sec. 240 should apply in this situation in which the stairway was being used as a work platform to effectuate the substantial interior alteration which involved changing the building from a loft-type building to residential condominiums.  The case settled prior to any judicial determination on this issue.

The plaintiff suffered a comminuted burst fracture at C-6 and was immediately rendered paraplegic.  The plaintiff also contended that initially, he suffered some hand and arm weakness.  The evidence reflected that after undergoing a fusion from C-5 thru C-7, the plaintiff was transferred to Mt. Sinai Hospital where he received in-patient rehabilitation services for four months.  The plaintiff continues to receive physical therapy on an out-patient basis.

The plaintiff indicated that through extremely hard work in therapy, he has been able to regain a significant degree of relative independence.  The plaintiff maintained that the initial arm and hand weakness has greatly improved, indicating that he is able to readily transfer himself to and from his wheelchair and that he is also able to drive.  The plaintiff would have testified that he is attempting to lead as active a life as possible and faces the future with hope.  The plaintiff contended, however, that he suffers permanent sexual dysfunction, must catheterize himself four times per day for urination and must use laxatives and a stimulator daily for bowel movements.  The plaintiff, who is unmarried, would have related that he resides in a two family house and that although he lives on the first floor, there are 4- 5 steps leading to his apartment.  The plaintiff contended that he must be carried to and from his building in his wheelchair.

The plaintiff maintained that he obviously can no longer work in the construction field and would have introduced evidence of earnings of approximately $ 50,000 per year.  The defendant would have contended that the plaintiff can work in alternative sedentary fields.  The plaintiff would have countered that his talents and inclinations geared him towards physical labor and that as a practical matter, he is permanently unemployable.  The plaintiff further maintained that he requires a home attendant six hours per day and that such need will continue permanently.

The case settled prior to the Court’s ruling on the motions for summary judgment for $ 7,250,000 plus the waiver of the approximate $ 400,000 Workers Compensation lien.

Commentary: The plaintiff had moved for summary judgment under Sec. 240 of the Labor Law.  The defendant and third-party defendant cross- moved for Summary Judgment, arguing that Sec. 240 should not apply in this situation in which the plaintiff fell from an existing staircase.  The plaintiff argued that the defendants’ position should be rejected in this situation in which the staircase was being used as a work platform for extensive alterations necessary to convert this loft building to residential condominiums.  It should be noted that the Court reserved on the motion and that the case settled before any judicial resolution was rendered.

The plaintiff was able to obtain a substantial recovery in view of the relatively limited claim for future costs of care, contending that he requires a home attendant only six hours per day and the limited cost of renovating his home to accommodate his paraplegia.  It is felt that the combination of the severe and undisputable nature of the paraplegia and the evidence that through extremely hard work in physical therapy, the plaintiff has been able to regain a significant degree of independence and can even drive, would have placed him in a favorably stoic posture before the jury.  In this regard, the plaintiff would have also stressed that notwithstanding his determination, the reality of the plaintiff’s life is that he will be permanently unable to walk, will experience sexual dysfunction as well as bowel and bladder difficulties throughout the remainder of a lengthy life expectancy and that such factors would clearly warrant significant compensation.

TOPIC: MEDICAL LIABILITY

RESULT: Plaintiff Verdict In Suit Alleging Negligent Diagnosis And Treatment Of Cord Compression. Inadequate Follow Up Care. A jury found in favor of plaintiff and awarded $ 2,468,000. The jury held NYCHHC 40% liable, and the chiropractor 60% liable. The award consisted of $ 1,000,000 for past pain and suffering; $ 800,000 for future pain and suffering; $ 200,000 for past loss of earnings; $ 168,000 for future loss of earnings; and $ 300,000 to plaintiff’s spouse for past and future loss of services. Both sides moved to set aside the verdict;. defendant New York City Health & Hospitals Corporation as against the weight of evidence and on proximate cause grounds, inconsistency and excessiveness; plaintiffs as against the weight of evidence on the apportionment of liability as to the chiropractor. All post-trial motions were denied by the court.

INJURY: Plaintiff is disabled with leftsided, neck and lower extremity pain and weakness.

SUMMARY: A 50-year-old porter was treated on four occasions by a chiropractor for complaints of a stiff neck. The chiropractor performed chiropractic manipulations without performing x-rays. X-rays would have revealed that plaintiff had cervical spondylosis secondary to osteophytic degeneration of the cervical spine. Following these manipulations, plaintiff suffered the onset of spastic quadriparesis with attendant pain and difficulty walking, secondary to cervical spinal cord compression.

The plaintiff presented to the Emergency Room at Kings County Hospital (NYCHHC), and was immediately admitted to rule out cervical spinal cord compression. NYCHHC performed a CT Scan which demonstrated spondylosis, a cervical myelogram which showed spinal cord compression by obstruction of dye flow, and an MRI, which provided results compatible with the myelogram.

NYCHHC’s attending physicians claimed at trial that the myelogram was negative, showing “no block.” Plaintiff was diagnosed as having suffered a spinal artery infarction (a “stroke”), an untreatable condition, and was discharged to follow up as an outpatient with physical, rehabilitative therapy.

At a Neurology Clinic visit to Kings County Hospital one week after discharge, plaintiff was examined and told to return in two months. At a Kings County Hospital physical therapy appointment several weeks postdischarge, plaintiff was told to return in six weeks for treatments.

Thereafter, plaintiff deteriorated. His pain and disability worsened. He developed a tight, band-like sensation around his abdomen.

He presented to the Hospital for Joint Diseases in New York City, whose physicians were advised by NYCHHC that plaintiff suffered a stroke. After work-up, which included review of the Kings County Hospital films and the performance of a new, confirmatory MRI, cord compression was diagnosed and a multi level decompressive laminectomy was performed. Plaintiff never fully recovered, remaining disabled with left-sided, neck and lower extremity pain and weakness.

Suit was brought against the chiropractor and NYCHHC. Plaintiff’s neurological expert opined that the staff at Kings County Hospital improperly failed to adhere to their clinical diagnosis of cord compression, failed to diagnose cord compression by misinterpreting the myelogram and MRI results, failed to appropriately follow the patient after discharge, and failed to timely schedule and perform surgery. The expert testified that such treatment caused a delay in diagnosis and surgical treatment, causing plaintiff’s condition to worsen and to become unamenable to correction and repair.

Defendant’s neurosurgical expert admitted under cross-examination that the Kings County Hospital myelogram showed a “partial” block and that it was a departure from accepted medical practice to follow the patient as an out-patient with such an extended physical therapy and clinic visit schedules. However, he testified that the plaintiff did not deteriorate, that his condition did not worsen, and therefore, there was no cause of injury.

NOTE: Alan H. Figman comments that the jury was asked as its first question to decide whether the evidence showed that plaintiff had in fact deteriorated following his discharge. Plaintiff produced in evidence three blow-ups from the subsequent medical records (from Rusk Institute where plaintiff rehabilitated following his surgery) wherein a history of deterioration following the Kings County Hospital discharge was documented, thus confirming plaintiff’s testimony.

SETTLEMENT NEGOTIATIONS: Demand: $ 1 million. Offer: $ 400,000.

TOPIC: State Liability: Psychiatric/Burns

TITLE: Severely handicapped resident of a State developmental center, who, as a result of a fire set by his roommate, sustained second-and third-degree burns

RESULT: Claimant awarded $275,000 for past pain and suffering and $100,000 for future pain and suffering, unanimously reversed, on the facts, without costs, to vacate the award of damages and remand for a new trial on the issue of damages only, unless defendant stipulates within 30 days from the date of this order to increase the award for past pain and suffering to $ 550,000 and the award for future pain and suffering to $ 200,000, and to the entry of an amended judgment in accordance therewith, in which event the judgment, as so amended, affirmed, without costs.

The award deviates materially from what is reasonable compensation for this 34-year-old, severely handicapped resident of a State developmental center, who, as a result of a fire set by his roommate, sustained second-and third-degree burns to 15% of his body, including his legs and buttocks, was hospitalized for six weeks, and experienced excruciating [***2]  pain during two skin graft procedures and various debridements and had to undergo a urethral catheter.