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ARTICLE ID 32616

$________ - FAILURE TO PROVIDE FOR DRAINAGE OF MELTING SNOW DUE TO CONCRETE STEPS ERECTED TO PROVIDE DIRECT ACCESS TO COMMERCIAL PREMISES SEVERAL YEARS AFTER ORIGINAL CONSTRUCTION OF STRIP MALL - SLIP AND FALL ON ICE - SEVERE ANKLE FRACTURE TO DIABETIC - DEATH FOUR YEARS POSTACCIDENT FROM UNRELATED CAUSES - SNOW REMOVAL CONTRACTOR AGREEING TO PROVIDE "ICE WATCH" SERVICES CONTRIBUTES 50% TO .

Bergen County

The plaintiff contended that the defendants owner and managing agent of a strip mall and the co-defendant commercial tenant negligently failed to provide for drainage of snow which melted onto steps of a concrete staircase which led from the parking lot directly to the retail tenant’s premises. The 35-year-old female plaintiff contended that as a result, she slipped and fell, suffering a severe fracture/dislocation to the ankle. The steps were erected some years after the original construction of the two-store strip mall with the original entrance being located approximately 15 yards away from the commercial tenant’s premises. The plaintiff contended that the canopy that was attached to the roof upon initial construction did not contain gutters and that although melting snow would drip harmlessly to a planter box prior to the addition of the steps, the failure to modify the canopy after the staircase was erected created a recurrent hazard that would be present whenever snow melted, dripped onto the steps and then refroze. The plaintiff had also named the snow removal contractor who had specifically promised in his contract to provide "ice watch" services in which he guaranteed that the area would be maintained in an ice-free condition. The plaintiff had also named the general contractor, architect and engineer involved in the original construction and these parties’ motions for summary judgment were granted, with the court ruling that the subsequent changes to the configuration of the mall were not foreseeable.

Prior to the accident the plaintiff, a diabetic, had developed end-stage renal disease and was undergoing dialysis. The plaintiff contended that because of the underlying condition, she could not achieve union of the ankle fracture, required multiple surgeries, developed a series of infections and that the extensive use of antibiotics caused a vestibular disturbance that resulted in severe vertigo and a moderate hearing loss. The plaintiff, who died four years after the accident from cardiac arrest, contended that she had great difficulties bearing weight during her final years and that the pain and suffering was severe. There was no evidence that the subject ankle fracture was a substantial factor in the plaintiff’s death. The plaintiff contended, however, that she had been on the kidney transplant list, that the injuries forced the physicians to remove her from the list and although there was no evidence that a kidney transplant would have prevented the death, the requirement to remove her from the list had emotional consequences of reducing her hope.

The plaintiff established that three to four years after the strip mall was constructed the tenant requested that steps be placed leading directly to its store, obviating the need for customers to use the entrance that was approximately 15 yards away. The plaintiff’s engineer asserted that the alteration rendered the area dangerous because snow would melt directly onto the steps and refreeze. This expert maintained that the incident would have been avoided if the defendants had taken the simple step of placing a gutter on the canopy, allowing the melting snow to drain through pipes at the end of the canopy. The plaintiff’s architect concurred that the dangerous condition was caused by the lack of adequate drainage.

The plaintiff also contended that it was clear that the ice patch that was the cause of the plaintiff’s accident was not an isolated incident and that this situation occurred every time the temperature conditions allowed snow to melt from the canopy, drip down and then refreeze on the steps. The evidence disclosed that the plaintiff’s husband, who was present at the accident, was a professional photographer. The plaintiff contended that photographs reflected that the cement in the area was pitted and rusted from the repeated and recurring nature of the freezing and refreezing of the ice on the stairs and the plaintiff maintained that it was clear that the recurrent condition had been present for an extended period.

The defendant snow removal contractor, who indicated in his deposition that he had been present earlier in the day, conceded, upon seeing the photographs, that such signs would not have been present if he had performed his duties as guaranteed in the "ice watch" provision of his contract. The commercial tenant conceded awareness of the condition, but contended that it salted, sanded and placed signs on a daily basis when necessary. The plaintiff contended that no signs, salt or sand were present at the time of the approximate 12:30 P.M. accident. The defendants would have also argued that the plaintiff was comparatively negligent.

The evidence revealed that plaintiff was an insulin-dependent diabetic who had previously been diagnosed with a history of end- stage renal disease, was on peritoneal dialysis and was awaiting a kidney transplant when the accident occurred. The evidence also reflected that the plaintiff had undergone a previous cardiac bypass operation. After the plaintiff suffered the trimalleolar fracture/dislocation of the left ankle, she underwent an initial open reduction with internal fixation. The plaintiff contended that she suffered severe pain, needed crutches, underwent extensive physical therapy and at times, needed a wheelchair. The plaintiff maintained that although it appeared as if she were improving for three to four months, the severe pain and difficulties returned, and that approximately one year later, x-rays revealed a progressive collapse of the lateral ankle space.

The plaintiff contended that she continued to experience extensive swelling and had great difficulties walking. The plaintiff underwent additional surgery that entailed the implantation of a rod and the plaintiff subsequently developed repeated infections, requiring several hospitalizations to control the infections.

The plaintiff contended that the ankle joint continued to deteriorate despite the surgery and ultimately disintegrated, leaving three to four inches which were connected by the rod only. The plaintiff would have exhibited x-rays of this condition before the jury. The plaintiff was left with a three-inch leg length discrepancy.

The plaintiff contended that because of the continuing severe difficulties that were superimposed on peripheral vascular disease, a below-the-knee amputation was proposed. The plaintiff did not wish to have such surgery and two and a half years after the accident, she underwent a final surgery in which an intramedullary rod that was impregnated with antibiotics was inserted. The plaintiff, who required additional antibiotic therapy after this surgery, contended that she suffered a vestibular disturbance that was associated with the extensive use of antibiotic medication and which caused vertigo and a moderate hearing loss. The plaintiff died approximately one year after the onset of the vertigo and hearing difficulties.

The case settled prior to trial for $________, with the tenant paying 30%, the owner and managing agent each paying 20% and the snow removal contractor paying 50%.

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