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ARTICLE ID 27328

$________ GROSS - PREMISES LIABILITY - 8.5 p73 FOOT FALL DOWN AIR SHAFT AT SHOPPING MALL - L-1 COMPRESSION FRACTURE - CALCANEUS FRACTURE - LOSS OF HIP STRENGTH.

Dade County

The male plaintiff, age 32 at the time, alleged that the defendant corporate owners of a shopping mall negligently left a dark room containing an open air shaft without adequate security, warning signs or railings, resulting in the plaintiff’s falling 8.5 feet into the shaft and sustaining L-1 and calcaneus fractures. The defendant asserted that the plaintiff caused his own injuries and should have known to obtain a flashlight or consult mall maintenance before entering the room to search for electrical circuits.

The plaintiff testified that on Friday the 13th of April, ________, he was a tenant in the defendant’s mall, scheduled to open a newsstand the following Monday when the electricity in his store went out. The plaintiff testified that he requested assistance from a mall employee to reinstate the electrical power. This employee, who worked at the mall as a landscaper, led the plaintiff to an electrical control room located in the basement of the mall. The gate and door to the electrical room were unlocked and without warning signs, according to the plaintiff’s testimony. The plaintiff entered the room, which had a three-foot wide floor, turned left and fell 8.5 feet down an open air shaft. The plaintiff’s building code expert testified that the lack of railings, warning signs or security for the air shaft violated Florida building codes and OSHA standards. The jury was charged that code violations were evidence of negligence to be considered, but were not conclusive evidence.

The plaintiff’s orthopedic surgeon testified that the plaintiff sustained a "Grade 1" compression fracture at L-1 which was stable as well as a calcaneus fracture in the fall, constituting a 28% permanent disability of the body as a whole. The plaintiff’s neurologist testified that the plaintiff also suffered a minimal loss of muscle strength in his hip as a result of his injuries. His rehabilitation specialist indicated that future medical treatment would be needed. The plaintiff’s expert economist testified that the plaintiff lost $________ in past wages caused by the delay of the opening of his business and would not be able to run the business without the assistance of a $5-6 per hour employee for the remainder of his working life.

The general manager of the defendant mall testified that the plaintiff had been previously notified that the landscaper has no maintenance knowledge and that only maintenance personnel should be consulted concerning repair problems. The defendant contended that the plaintiff should have known to obtain a flashlight before entering the dark room or to contact maintenance personnel concerning the electrical problem. The landscaper for the defendant mall testified that he knew he had no authority to make repairs, but was trying to help the plaintiff. The defendant’s orthopedic surgeon testified that the plaintiff’s injuries constituted a 8% disability of the body as a whole. The jury found the defendants 75% liable, the plaintiff 25% comparatively negligent and awarded $________ which was reduced accordingly. Plaintiff’s building code expert: Gale Kenney from Jupiter, Fla. Plaintiff’s orthopedic surgeon: Charles p 7 3 Weiss from Miami Beach. Plaintiff’s economist: David Williams from Miami. Plaintiff’s rehabilitation specialist: Michael Morgenstern from Miami. Plaintiff’s neurologist: Ray Lopez from Miami. Defendant’s expert orthopedic surgeon: Scott Piper from Miami. Guerrero vs. Mayfair III, Inc., et al. Case no. 90-________; Judge Peter Capua, 1-17-92. Attorney for plaintiff: Hector Lombana of Grossman & Roth in Miami; Attorney for defendant: Jack Luks of Luks & Levine in Miami.

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