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Attorney(s) for Plaintiff:
John P. Maley and Christopher J. Maley
Maley and Maley, PLLC


Franklin County, VT

In this negligence action, the plaintiff alleged that the defendant city was negligent in failing to properly inspect its playground equipment and ensure that it met proper safety standards. The defendant city filed a third party action against the defendant swim association and defendant insurance company alleging indemnity issues. The defendant denied liability and disputed damages.

The nine-year-old female plaintiff was at the defendant city's park to watch her brother compete in a swim meet. The third party defendant swim association had contracted with the defendant city to hold a swim meet at the pool on the city park property on the date of the incident. The park contained a swimming pool and a playground area. The playground area was outside the fenced-in area for the pool, but in close proximity to the concession stand being operated for the swim meet. The plaintiff climbed up to a platform, put her hands around a bar and pushed herself back and forth on the bar. She lost her grip and her head went down first with feet following. The back of the plaintiff's head struck a wooden beam that was part of the equipment on the ground.

The plaintiff was transported to Dartmouth Hitchcock Medical Center where she was diagnosed with a skull fracture, an intraparenchymal hemorrhage and an occiput fracture. She was hospitalized for 11 days and underwent emergency surgery to decompress the cerebral bleed by a craniotomy. She also underwent a C1-C2 laminectomy and a duroplasty. An external ventricular drain was placed in order to relieve pressure on the child's brain.

The plaintiff brought suit against the defendant city alleging that the city was negligent in failing to comply with appropriate standards for playground equipment including the installation of guardrails and protective barriers. The plaintiff alleged that the defendant's failure to comply with these standards and its apparent failure to inspect and upgrade the equipment to meet safety standards amounted to negligence.

The defendant city denied the allegations and a third party action was brought against the defendant swim association and the insurance company. The defendant city alleged that as part of its agreement with the swim association for use of the property for the swim meet, there were indemnity agreements in place which relieved the city of liability for the plaintiff's fall and resulting injuries.

The defendant city filed a motion for summary judgment seeking a dismissal based upon its claim of municipal immunity. The plaintiff opposed the motion and it was denied by the trial court. The third party defendant swim association also sought to be relieved through a summary judgment proceeding. That motion was likewise opposed by the plaintiff and denied by the court.The matter proceeded and was settled by the parties for the sum of $800,000 just prior to the jury draw.

Plaintiff's certified playground inspector expert: Margaret Payne from New York, NY. Plaintiff's learning disorders expert: A.C. Maerland, Ph.D. from Lebanon, NH. Plaintiff's neurology expert: Douglas Hyder, M.D. from Lebanon, NH. Plaintiff's neurosurgery expert: Susan Durham, M.D. from Lebanon, NH. Plaintiff's pediatrician expert: Joseph Nasca, M.D. from St. Albans, VT.

David and Susan Southwick, Guardians for Minor Addie Southwick vs. City of Rutland, et al. Case no. S115-06Fc, 01-05-10.

Attorney for plaintiff: John P. Maley and Christopher J. Maley of Sylvester Maley in Burlington, VT. Attorney for defendant City of Rutland: William Ellis of McNeil Leddy & Sheahan in Burlington, VT.

After she was discharged from the hospital after an 11-day stay, the child was required to undergo extensive physical and occupational therapy, as well as speech therapy. Special accommodations were required at the child's school. She was deemed to have made an excellent recovery by the end of the year in 2005. However, two and a-half years after the incident, the plaintiff's neurologist noted residual cognitive deficits and she was sent for neuropsychological testing. She was diagnosed with subtle difficulties, particularly with her processing speeds.

The plaintiff alleged that the playground equipment where the minor plaintiff was injured was built by the defendant city in 1981 and remained in the same condition until the day of the fall in 2009. The plaintiff presented expert testimony in the form of a certified playground safety inspector. The plaintiff's expert alleged that the defendant's playground equipment violated guidelines which required guardrails and protective barriers on elevated platforms. The plaintiff's expert opined that the equipment further lacked a use or "fall zone" which mandated that the area immediately adjacent to the equipment were a child would be expected to fall be free of obstacles. The plaintiff argued that the defendant failed to comply with the "fall zone" requirements in that the wooden beam on which the plaintiff struck her head was located within the "fall zone" area.

The defendants intended to assert a defense of comparative negligence at the trial of the matter and filed extensive motions including the defendant's Daubert Motion to seek to preclude the testimony of the plaintiff's pediatrician, the defendant's motion to preclude the issue of future damages and the plaintiff's motion to preclude defense to the introduction of Consumer Products and Safety Commission Guidelines regarding playground construction and safety. The parties videotaped the depositions of the three medical experts.

Litigation continued after the agreement to settle between the defendants to determine who should be ultimately responsible for paying damages under the indemnity agreement that was in place at the time of the plaintiff's fall.

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