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ARTICLE ID 34069

$________ GROSS REDUCED BY 35% COMPARATIVE NEGLIGENCE - PREMISES LIABILITY - DECEDENT SLIPS AND FALLS DOWN STAIRCASE WHICH WAS ALLEGEDLY NEGLIGENTLY CONSTRUCTED AND MAINTAINED - HEAD INJURIES INCLUDING ACUTE SUBDURAL HEMATOMA AND FRACTURED SKULL - CHRONIC VEGETATIVE STATE AND DEATH FOUR MONTHS AFTER FALL.

Erie County

The 42-year-old female decedent was a tenant on the first floor of the defendant apartment building. On February 19, ________, she was returning from a visit to an upstairs neighbor and was walking down an exterior wooden staircase. The plaintiff maintained that the decedent slipped and fell some 20 feet to the ground below. Her 12-year-old daughter witnessed the fall. As a result of the fall, the decedent sustained head injuries including an acute subdural hematoma and a fractured skull. These injuries resulted in a chronic vegetative state and she died four months later on June 14, ________. The plaintiff sued the building owner alleging that he was negligent in the construction and maintenance of the exterior stairway in violation of relevant building code regulations. Specifically, the plaintiff alleged that the stairway was too narrow and too steep and that the stairs were uneven and slanted forward.

The defendant contended that there was nothing wrong with the stairway and that the decedent’s fall was caused by intoxication.

The parties also argued about the weather conditions on the day of the fall and whether this was a factor contributing to either party’s negligence. The plaintiff argued that the temperature on the day of the fall was below freezing and that the stairs were slippery and did not have a nonstick surface. The defendant’s expert meteorologist opined that there had been a light snow earlier that day but that at the time of the fall the weather had cleared.

A civil engineer testified on the plaintiff’s behalf that the stairway violated a number of the regulations of the New York Building Code. This was supported by the testimony of a construction expert. The defendant himself had built the staircase.

The decedent had undergone a blood test upon her admission to the hospital and it was at first determined that she had a .33 blood alcohol level. The plaintiff disputed the accuracy of this test.

The decedent’s medical treatment included multiple neurosurgeries to relieve pressure to her skull. The decedent’s treating neurosurgeon and her treating geriatric medical specialist testified that the decedent had been conscious at times and was able to experience conscious pain and suffering. The decedent was later transferred to a nursing home.

The decedent’s original neurosurgeon and a physician’s assistant testified on the defendant’s behalf that the plaintiff was unconscious throughout and did not experience conscious pain and suffering.

The decedent’s daughter made a "zone of danger" claim and the plaintiff’s expert forensic psychologist testified as to the emotional trauma the decedent’s daughter experienced in witnessing her mother’s fall. He testified that the daughter suffered post-traumatic stress syndrome and depression and needed continuing treatment.

The trial lasted four weeks. The jury deliberated for three hours. The jury returned a verdict finding the defendant 65% negligent and the plaintiff’s decedent 35% comparatively negligent.

It awarded the plaintiff $________ for loss of earnings, $________ for medical expenses, $________ for conscious pain and suffering and $$________ for funeral expenses. In addition, it awarded the decedent’s daughter $________ for pecuniary losses and $________ for her pain and suffering. The judge ruled that the mother’s comparative negligence removed 35% from the entire award excluding the $________ award to her daughter for pain and suffering which the judge held was a separate, non-derivative claim. The entire judgment was $________ which was reduced to $________ plus interest because it was a case involving a wrongful death.

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