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ARTICLE ID 190231

$________ Premises Liability – Fall Down – Slip and fall on snowy Dunkin Donuts stairs – Torn quadriceps tendon – Surgery – Plaintiff out of work eight months – Medicaid lien – Failure of defendant to retain photos .

Bergen County, NJ

The 37-year-old contended that the defendant negligently failed to properly attend to snow which had fallen earlier that morning. The plaintiff related that he slipped and fell as he was descending the stairs at the defendant’s Dunkin Donuts location using the handrail. The plaintiff related that was carrying nothing and holding onto the right railing following his wife, who was carrying the coffee and donuts when the fall occurred at approximately 9:15 a.m.

The plaintiff established that the weather was cloudy and cold and that the snow had stopped before the incident. The plaintiff maintained that the entire area outside of the store, including the stairway, the ramp and the parking lot were snow covered and that there had been no shoveling, sanding, salting and no effort to remove or remediate the snow. There were also no warnings.

The defendants were the tenant, the two store strip mall owners and the owner’s contract landscaper. The defendants stressed that the plaintiff had used the same steps while entering and maintained that the cause of the accident was the failure of the plaintiff to be more careful when leaving. A store employee indicated that she observed the fall and immediately responded to the plaintiff while he was lying at the bottom of the stairs. The witness also contended that the plaintiff was foolishly wearing “Crocs”, which are rubber clog-like shoes and that this factor significantly contributed to the incident. The witness further indicated that another store employee had regularly applied ice-melt before the accident and she took pictures of the steps and the plaintiff.

The plaintiff s’ liability expert opined that the failure to clear snow from the stair tread and area, failure to maintain a safe means of egress, the failure to maintain a safe walking surface for business invitees and the general public, failure to provide slip-resistant walking surfaces to comply with codes and accepted industry standards, and failure to warn the public of these dangerous and hazardous conditions were all negligent acts on the part of the property owner, tenant and the landscaper. The plaintiff also contended that the “Crocs” were an appropriate choice of footwear for the snow, and argued that “Crocs” are “Shoes for Crews” and are by design slip resistant and worn by the plaintiff because he was a part-time cook at a local hamburger joint.

The plaintiff further pointed out that the defendant Dunkin Donuts could neither produce the photos the eyewitness had taken with her cell phone nor recordings taken by eight surveillance cameras within the store. At arbitration, the plaintiff s argued spoliation and that a negative inference was appropriate because defendant tenant was aware that the plaintiff had a claim and that the photos and surveillance were pertinent evidence. The employee/eyewitness testified that a co-worker had applied ice-melt every 20 minutes for two hours before the plaintiff’s accident; the plaintiff s argued that the “erased” surveillance cameras within the store would have shown if the employee did leave the store every 20 minutes to throw ice-melt on the stairs.

The defendants’ liability expert concluded that the defendants complied with the requirement contained in the municipal ordinance to abate snow and ice within 24 hours. The landscaper testified be cleared two inches of snow later during the day from the parking lot and stairs. The pertinent lease required the defendant landlord/owner to clear ice and snow.

The plaintiff suffered a ruptured quadriceps tendon on the right with a complex tear of the quadriceps with approximately 50% of the media quadriceps tearing off the superior pole of the patella. The lateral aspect of the quadriceps was intact, but there was a split that went centrally from medial anteriorly to lateral superiorly. The retinaculum was intact on the lateral side, but ruptured on the medial side. The plaintiff had open surgery, under general anesthesia, of a right quadriceps repair. The plaintiff was casted and, as a result of the casting, the plaintiff suffered contact dermatitis; the plaintiff has a 12 inch surgical scar. The plaintiff used a walker and a brace for several months and was out of work for eight months. At the time of trial, the plaintiff complained of limitation of motion of the right leg and swelling of the right leg.

The plaintiff testified that his leg gives out and he suffers from stiffness. The plaintiff, well over ________ pounds, suffers from a limp and cannot bend down and cannot run. The plaintiff was also approved for a temporary Handicapped sign for his automobile. As a result of the weakness and injuries to the plaintiff’s right leg, he suffered additional falls. The plaintiff’s consulting orthopedist opined that the plaintiff’s complaints are consistent with his injuries and are permanent. The defendants’ expert physician opined that the plaintiff made an excellent recovery from the surgery and his only permanency is the surgical scar.The case was arbitrated in court, pursuant to Rule 4:21A, which resulted in a $________ award. The case subsequently settled for $________. The breakdown was as follows: $________ from the owner of Liberty & Co., $________ from Dunkin Donuts, and $________ from the landscaper.

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