John A. DeGasperis received a favorable trial verdict for a Basch & Keegan client in Greene County last month. This civil case had many difficulties, but John’s trial skills won the day!
In this case, John represented a Greene County woman who tripped and fell over an uneven sidewalk on Main Street in the Village of Catskill, New York. The sidewalk was owned by a real estate investment company. The property owner had recently replaced the sidewalk, which made John’s case more challenging, but the new sidewalk stood 1.5 inches above the adjacent property owner’s sidewalk. John argued this height differential constituted a trip hazard under the law.
John’s client, an otherwise healthy fifty-four-year-old woman, tripped and fell over the trip
hazard. She suffered a shoulder injury (rotator cuff tear) that required surgical intervention. The surgery failed, and John’s client was recommended for a shoulder replacement, which she
declined.
With no offer to settle, John went to battle for his client and took the matter to trial in front of
a jury in Greene County. John retained a professional engineer to testify at trial. The expert witness inspected the sidewalk and opined that the 1.5-inch height differential constituted a trip hazard from an engineering perspective. The differential did not conform to safe construction or design standards, including the American National Standards Institute (ANSI).
Principles governing New York’s premises liability law provide that property owners owe a
duty of care to maintain their properties in a reasonably safe condition. The law gives owners
three options: (1) correct any known problems, (2)take reasonable precautions, or (3) warn of
potentially dangerous conditions not readily observable.
In this case, the property owner did try to correct the problem. The property owner constructed a new sidewalk, but it was uneven with the adjacent sidewalk. In his closing argument, John argued that it would probably be unreasonable to ask the property owner to demolish and rebuild the sidewalk again. John also recognized that it would be impractical for the property to institute any reasonable precautions because they would obstruct the sidewalk. Thus, John argued that the property owner failed to warn of the trip hazard.
During the trial, John used an enlarged picture of the uneven sidewalk. He also brought a can of
yellow spray paint. John explained that the property owner was legally obligated to warn
pedestrians of the trip hazard, and John argued the accident could have been avoided if the
property owner had painted the differential with yellow spray paint. He demonstrated this by
drawing a stripe with a large yellow paint marker on the enlarged picture. John said, “When I drew that yellow line across the sidewalk, it was a powerful display in the courtroom. I could feel the jury nodding their heads behind me.”
The jury concluded that the property owner was 65% negligent. The jury did apportion 35% of
comparative fault against Plaintiff. This was a win for John’s client especially considering
the property owner’s insurance company refused to settle. Due to the jury’s favorable verdict,
the property owner’s insurance company is obligated to pay John’s client $97,500. This is
because prior to trial John and the insurance company had agreed that the Plaintiff’s injury was
worth $150,000, and the insurance company agreed to pay any percentage of fault found
against the property owner.
