Note: The following material was originally published in VerdictSearch.com.
SETTLEMENT: $850,000
CASE TYPE: Dangerous Condition, Premises Liability - Trip and Fall, Premises Liability - Sidewalk, Premises Liability - Negligent Repair and/or Maintenance, Government - Municipalities
VENUE: Queens Supreme, NY.
JUDGE: Patricia P. Satterfield. DATE: 06-05-2006
PLAINTIFF'S ATTORNEY: Eric H. Morrison; Morrison & Wagner; New York, NY
DEFENDANT'S ATTORNEY: Adam B. Rosen; Wilson, Elser, Moscowitz, Edelman & Dicker LLP; New York, NY, for Castle Oil Corp.; None reported; null, null, for Brooklyn Union Gas Co., City of New York, Consolidated Edison Company of New York, Gotham Petroleum Transport Inc., Petro Inc.; Robert D. Frankfort; Frankfort & Koltun; Deer Park, NY, for Crescent, LLC., Suzuki Associates Ltd.
EXPERT: None
INSURER: Harleysville Group Inc. for Suzuki Associates; Reliance Insurance Co. (in liquidation) for Castle Oil
FACTS: On Sept. 15, 1998, plaintiff age 60, a department stores counter person, tripped on an oil-supply-line cap that was protruding from the surface of a sidewalk that was located in the Astoria section of Queens. She claimed that she fell and sustained an elbow injury.
The plaintiff sued the adjacent property's owners, Crescent, LLC and Suzuki Associates Ltd - the property's former oil vendors, Gotham Petroleum Transport Inc. and Petro Inc.; and the property's current oil supplier, Castle Oil Corp. She alleged that the defendants created a dangerous condition. In a separate action, the plaintiff sued the sidewalk's owner, the city of New York. She alleged that the city was negligent in its maintenance of the sidewalk and that its negligence created a dangerous condition. The cases were consolidated. The city commenced a third-party suit against two other parties, Brooklyn Union Gas Co. and Consolidated Edison Company of New York, but the suit was discontinued during the trial.
The plaintiff subsequently discontinued her claims against Gotham Petroleum Transport and Petro. The city was dismissed during the trial, thus precipitating the city's discontinuation of the third-party suit. The case proceeded against the remaining defendants.
The plaintiff claimed that the oil cap protruded about one inch above the surrounding surface of the sidewalk. Plaintiff's counsel claimed that the defendants negligently used an ill-fitting water cap, instead of an oil cap that was supposed to be used. He also contended that the defendants should have warned that the cap constituted a tripping hazard.
The defendants argued that the cap was a minor defect and that the plaintiff was comparatively negligent for failing to notice the cap, which was in the middle of the sidewalk that she traveled upon almost every day for 10 years. The property manager for the building owned by Crescent and Suzuki Associates contended that, three months before the accident, it notified Castle Oil that the cap needed to be replaced. It claimed that Castle Oil replaced the cap with an ill-fitting water plug, though Crescent and Suzuki Associates could not produce documentation showing that Castle Oil worked on the cap. The property manager also contended that it repeatedly telephoned Castle Oil, but that the calls were ignored and that Castle Oil did not fix or replace the plug until 30 days after the accident. However, the plaintiff's safety expert photographed the plug on the date of the trial, and the photographs showed that the same plug was still situated in the sidewalk eight years after the accident.
Castle Oil's representatives testified that they hadn't worked on the oil cap and that they did not have any documentation showing that they ever worked on it. They also claimed that they had no such water plug or cap in their inventory. Castle Oil's oil-delivery man testified that he had no responsibility for the condition of the cap and that he was only responsible for the delivery of the oil.
INJURY
The plaintiff was placed in an ambulance and transported to The New York Hospital Queens, in Flushing. Doctors determined that she had sustained a fracture of her right, nondominant, arm's elbow. She underwent surgical reconstruction of the joint, but she subsequently developed heterotrophic ossification, or excessive calcification, of the elbow, rendering it immobile. The plaintiff claimed that she is permanently disabled and that, as a result, she lost her job, which had an annual salary of $20,000. She sought recovery of her lost earnings and damages for her past and future pain and suffering. Her husband presented a derivative claim.
VERDICT INFORMATION: The jury rendered a mixed verdict. It found that Crescent and Suzuki Associates were 100% liable for the plaintiff's fall. Castle Oil was not assigned liability. During the trial's damages phase the parties agreed to an $850,000 settlement.
