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ARTICLE ID 168761

$________ GROSS - PREMISES LIABILITY - HAZARDOUS STAIRWAY AT SECOND STORY BAR - INADEQUATE LIGHTING - INTOXICATED PLAINTIFF TRIPS AND FALLS ON ELEVATED NOSING - SEVERE HEAD TRAUMA AND COGNITIVE DEFICITS - VISUAL IMPAIRMENT - SEIZURE DISORDER - 20% COMPARATIVE NEGLIGENCE FOUND.

Hudson County, NJ

This action involved a plaintiff, in his mid 30s, who contended that the top of the second story staircase at the defendant tavern was dangerous, resulting in his falling approximately half way down the staircase and suffering a head trauma that caused extensive swelling. The plaintiff required surgery in which a portion of his skull was removed to accommodate the swelling. He was left with extensive cognitive deficits that severely impact his ability to engage in tasks requiring him to sequentially follow steps and complete everyday tasks. The plaintiff also maintained that he suffered a seizure disorder and that the brain injury caused a significant and permanent visual disturbance. The plaintiff further contended that he suffers tinnitus.

The plaintiff maintained that the metal nosing at the top of the staircase was raised, and that the defendant clearly had notice of the defect, which the plaintiff maintained had been present for an extended period. The plaintiff contended that one trip to a hardware store, the expenditure of $________ and the use of four screws would have fixed the problem and prevented this tragedy. The plaintiff further contended that the hand railing did not comply with code because it was situated too low. Finally, the plaintiff maintained that the area did not contain either adequate color contrast or adequate lighting, contributing to the hazard.

The evidence disclosed that after the plaintiff had been at the tavern for some time, he went to leave and fell. The defendant denied that the stairway was dangerous. The defendant also established that the plaintiff had been at the tavern at least once per week during the preceding five-year period, during which he lived with one of the bar’s employees and contended that he was clearly comparatively negligent.

The plaintiff was rushed to the hospital and blood alcohol readings were made. The defendant’s toxicologist contended that when converted to a BAC, the readings approximated .26. The defendant maintained that the plaintiff’s inebriation clearly contributed significantly to the incident.

The plaintiff had initially included a dram shop count. The evidence ultimately disclosed that the tavern did not have dram shop insurance. The tavern owner had brought an errors and omissions action against his insurance broker, contending that the broker was negligent in failing to advise him of the absence of dram shop coverage. Although the papers in prior years contained a dram shop waiver, such a waiver was not present for the year in question. Although the actions had the same docket number, the insurance malpractice action proceeded on a separate, but parallel track and would have been tried at about the same time if the plaintiff had pursued the dram shop aspect. The plaintiff ultimately made a determination that the defendant’s case against the broker was weak and withdrew the dram shop count.

The plaintiff pointed to defense depositions taken while the dram shop aspect remained pending that reflected the absence of overt signs of intoxication. The plaintiff argued that the clear discrepancy between this evidence and the overt signs of intoxication to be expected of one with a.26 BAC cast significant doubt on the reliability of the readings, and that the jury should not accept that the plaintiff was inebriated.

The plaintiff also argued, on the evidence that the plaintiff was regularly present in the tavern for the past five years, that in view of the long standing nature of the defects, it was virtually inevitable that an incident would ultimately occur. The plaintiff argued that the jury should consider that the law required the plaintiff to be reasonable and not perfect, contending that if one used the staircase without incident ________ times, the fact that the accident occurred on the 1000th use did not indicate that the individual was negligent.

The plaintiff was in a coma for approximately one week. He required surgery in which a portion of the skull was removed because of the swelling and a second surgery in which the opening was covered with a plastic material. The plaintiff contended that he was left with extensive deficits, including great difficulties performing tasks requiring sequential thoughts. The evidence disclosed rather than simply performing simple multi-step tasks, the plaintiff must slowly think out the means of performing each segment of the task and that such deficits are permanent in nature.

The plaintiff also maintained that he has suffered a seizure disorder. The evidence revealed that because of the use of medication, the plaintiff has not had a seizure in the past five to six months. The plaintiff contended, however, that he will permanently be subject to seizures. The plaintiff further contended that because of the brain injury, he has suffered a very significant visual disturbance that renders his ability to walk without holding onto a cane or other object very difficult. The plaintiff also maintained that the tinnitus is permanent in nature.

The plaintiff, who has not worked since the accident, had COBRA for 18 months and no longer has health insurance. He contended that he will incur extensive future medical bills because of the need for medications and maintenance visits with various physicians. The plaintiff’s income claims were suppressed because of immigration issues. The plaintiff has preserved this issue for appeal.

The jury found the defendant 80% negligent, the plaintiff 20% comparatively negligent and rendered gross awards of $________ for pain and suffering and $________ for future medical bills.

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