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ARTICLE ID 155884

$________ - NEGLIGENT INSTALLATION AND MAINTENANCE OF SECOND FLOOR BALCONY RAILING - PLAINTIFF LEANS AGAINST RAILING AND FALLS - SEVERE FRACTURE TO DOMINANT ELBOW - EXTENSIVE RESTRICTION OF ARM MOBILITY - FEMUR FRACTURE - PROBABLE NEED FOR FUTURE KNEE REPLACEMENT SURGERY.

Middlesex County

The plaintiff, in his mid 30s, who was helping his friend move from the second story garden apartment owned by the defendant landlord, contended that the landlord negligently failed to maintain the railing that was installed by the co- defendant contractor approximately two years earlier. The plaintiff contended that as result, the railing gave way as he leaned against it. The plaintiff maintained that he fell, initially struck a railing that was adjacent to the walkway to assist disabled residents and visitors, and then struck the pavement. The plaintiff maintained that he suffered severe fractures to the dominant elbow which required surgery and the insertion of hardware, and which will permanently cause pain and extensive restriction of motion. The plaintiff also suffered a femur fracture which required surgery and the implantation of a rod. The plaintiff maintained that this injury will permanently cause pain and restriction and that the plaintiff will probably require a knee replacement in the future.

The balcony floor was constructed from teak wood. The plaintiff’s construction expert maintained that because of the hard nature of this type of wood, it is particularly important to use the correct type screws and an appropriate bracket when attaching the railing. The plaintiff’s expert maintained that the contractor failed to use the correct screws, that a number of the brackets were rusty and that as a result, a number of the screws broke or loosened.

The balcony floor was placed in a number of sections, with a small gap being present between the sections. The plaintiff’s expert related that his inspection revealed that several screws used to attach one end of the railing, had been improperly screwed into the space between the sections of wood. The plaintiff contended that for the approximate one-year period preceding the incident, there had been obvious signs that the railing was not secure. The plaintiff maintained that because the railing would frequently rock in the wind, the white pillars on either side of the railing contained black wear marks. The plaintiff maintained that he complained to the landlord about these signs and about a number of loose or broken screws and that the landlord took no action.

The defendant contractor maintained that its work was performed properly and that if the landlord had provided proper maintenance, the incident would not have occurred. The defendant landlord denied that it was advised of any difficulties previously and contended that the cause of the mishap was the negligent failure of the contractor to properly install the railing in the first instance.

The plaintiff maintained that because of the severe fracture to the dominant elbow, the plaintiff required surgery and the insertion of a plate and screws. The plaintiff’s orthopedist related that in addition to severe and permanent pain, the plaintiff has permanently lost extensive mobility in the arm. The plaintiff contended that he experiences great problems with the activities of daily living that he has difficulties writing and picking up objects.

The plaintiff’s orthopedist further related that the plaintiff required surgery and the implantation of a rod because of the femur fracture. The expert maintained that the plaintiff will permanently suffer extensive pain and difficulties ambulating. The physician would have further contended that because of continuing stress on the knee, it is likely that the plaintiff will require future knee replacement surgery.

The evidence disclosed that the plaintiff had owned and run a restaurant maintenance business. The plaintiff contended that the work entailed his spending long hours on his feet and that he had frequently used a vacuum cleaner and floor polishing machine. The plaintiff maintained that he has been required to give the business up. The plaintiff contended that as a practical matter, he will probably not be able to obtain or perform alternative work. The plaintiff would have projected future income losses which ranged from approximately $________ to approximately $________.

The case settled prior to trial for a total of $________. The contractor paid its $________ policy limits. The landlord paid its $________ primary policy and the landlord’s excess carrier paid $________.

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