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ARTICLE ID 39289

$________ GROSS - PREMISES LIABILITY - TRIP AND FALL - 80-YEAR-OLD PLAINTIFF PATRON IN RETAIL STORE TRIPS OVER CHAIR IN RESTAURANT AREA - CHAIR DEFECT - FRACTURED LEFT HIP REQUIRING OPEN REDUCTION INTERNAL FIXATION WITH SURGICAL HARDWARE INSTALLATION OF PLATE AND PINS - FRACTURED SHOULDER.

U.S. Dist., Eastern Penn.

The female plaintiff, age 80 years old at the time, contended that she sustained a fractured hip and fractured shoulder when she tripped and fell over a chair left in a walking area of the restaurant portion of the defendant’s retail store. The plaintiff asserted that she had visited the rest room and then turned to go back to the rest room when she tripped over the chair. The plaintiff contended that the chair had not been in her path when she initially entered the rest room. The plaintiff asserted that the defendant was negligent in placing a table and chairs near the rest room and that the defendant was in violation of the BOCA code requiring a 36-inch walkway opening. The plaintiff asserted that due to the placement of the table and chairs in the subject area, only a 35.5-inch walkway opening was available. The plaintiff further asserted that the defendant was negligent in requiring patrons to push chairs back under the tables after completing their meals and that the defendant did not properly maintain the eating area. The plaintiff’s expert professional engineer testified that the defendant violated the BOCA code by its negligent design of the area. This expert further asserted that the chairs were dangerous since the legs of the chair extended out past the back of the chair.

The plaintiff’s treating orthopedic surgeon testified that the plaintiff suffered a fractured hip requiring surgical repair and that due to the fractured shoulder may require a shoulder replacement. The defendant maintained that a 35 1\2 inch walkway opening is sufficient compliance with BOCA codes. The defendant further contended that the chair was in plain view and was an open and obvious condition. The defendant’s expert professional engineer testified that the 35 1\2 walkway opening did not violate the spirit of the BOCA code. This expert further asserted that lighting in the area was adequate and that the table and chairs were in plain view and did not constitute a hazard or trap. The defendant’s expert orthopedic surgeon asserted that the plaintiff made a good recovery from the hip fracture and that she did not need to utilize a cane at all times, as the plaintiff claimed.

This expert further asserted that he agreed that the plaintiff suffered a progressive shoulder injury. This expert further asserted that the plaintiff’s initial hospitalization lasting 3.5 weeks was excessive and that a 7-day to 10-day hospitalization would have been sufficient. The jury found the defendant 51% negligent and the plaintiff 49% negligent. The damages award was reduced to $________.

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