ARTICLE ID 168761
$________ GROSS - PREMISES LIABILITY - HAZARDOUS STAIRWAY AT SECOND STORY BAR - INADEQUATE LIGHTING - INTOXICATED PLAINTIFF TRIPS AND FALLS ON ELEVATED NOSING - SEVERE HEAD TRAUMA AND COGNITIVE DEFICITS - VISUAL IMPAIRMENT - SEIZURE DISORDER - 20% COMPARATIVE NEGLIGENCE FOUND.
Hudson County, NJ
This action involved a plaintiff, in his mid 30s, who
contended that the top of the second story staircase at the
defendant tavern was dangerous, resulting in his falling
approximately half way down the staircase and suffering a head
trauma that caused extensive swelling. The plaintiff required
surgery in which a portion of his skull was removed to
accommodate the swelling. He was left with extensive cognitive
deficits that severely impact his ability to engage in tasks
requiring him to sequentially follow steps and complete everyday
tasks. The plaintiff also maintained that he suffered a seizure
disorder and that the brain injury caused a significant and
permanent visual disturbance. The plaintiff further contended
that he suffers tinnitus.
The plaintiff maintained that the metal nosing at the top of the
staircase was raised, and that the defendant clearly had notice
of the defect, which the plaintiff maintained had been present
for an extended period. The plaintiff contended that one trip to
a hardware store, the expenditure of $________ and the use of four
screws would have fixed the problem and prevented this tragedy.
The plaintiff further contended that the hand railing did not
comply with code because it was situated too low. Finally, the
plaintiff maintained that the area did not contain either
adequate color contrast or adequate lighting, contributing to the
hazard.
The evidence disclosed that after the plaintiff had been at the
tavern for some time, he went to leave and fell. The defendant
denied that the stairway was dangerous. The defendant also
established that the plaintiff had been at the tavern at least
once per week during the preceding five-year period, during which
he lived with one of the bars employees and contended that he
was clearly comparatively negligent.
The plaintiff was rushed to the hospital and blood alcohol
readings were made. The defendants toxicologist contended that
when converted to a BAC, the readings approximated .26. The
defendant maintained that the plaintiffs inebriation clearly
contributed significantly to the incident.
The plaintiff had initially included a dram shop count. The
evidence ultimately disclosed that the tavern did not have dram
shop insurance. The tavern owner had brought an errors and
omissions action against his insurance broker, contending that
the broker was negligent in failing to advise him of the absence
of dram shop coverage. Although the papers in prior years
contained a dram shop waiver, such a waiver was not present for
the year in question. Although the actions had the same docket
number, the insurance malpractice action proceeded on a separate,
but parallel track and would have been tried at about the same
time if the plaintiff had pursued the dram shop aspect. The
plaintiff ultimately made a determination that the defendants
case against the broker was weak and withdrew the dram shop
count.
The plaintiff pointed to defense depositions taken while the dram
shop aspect remained pending that reflected the absence of overt
signs of intoxication. The plaintiff argued that the clear
discrepancy between this evidence and the overt signs of
intoxication to be expected of one with a.26 BAC cast significant
doubt on the reliability of the readings, and that the jury
should not accept that the plaintiff was inebriated.
The plaintiff also argued, on the evidence that the plaintiff was
regularly present in the tavern for the past five years, that in
view of the long standing nature of the defects, it was virtually
inevitable that an incident would ultimately occur. The plaintiff
argued that the jury should consider that the law required the
plaintiff to be reasonable and not perfect, contending that if
one used the staircase without incident ________ times, the fact that
the accident occurred on the 1000th use did not indicate that the
individual was negligent.
The plaintiff was in a coma for approximately one week. He
required surgery in which a portion of the skull was removed
because of the swelling and a second surgery in which the opening
was covered with a plastic material. The plaintiff contended that
he was left with extensive deficits, including great difficulties
performing tasks requiring sequential thoughts. The evidence
disclosed rather than simply performing simple multi-step tasks,
the plaintiff must slowly think out the means of performing each
segment of the task and that such deficits are permanent in
nature.
The plaintiff also maintained that he has suffered a seizure
disorder. The evidence revealed that because of the use of
medication, the plaintiff has not had a seizure in the past five
to six months. The plaintiff contended, however, that he will
permanently be subject to seizures. The plaintiff further
contended that because of the brain injury, he has suffered a
very significant visual disturbance that renders his ability to
walk without holding onto a cane or other object very difficult.
The plaintiff also maintained that the tinnitus is permanent in
nature.
The plaintiff, who has not worked since the accident, had COBRA
for 18 months and no longer has health insurance. He contended
that he will incur extensive future medical bills because of the
need for medications and maintenance visits with various
physicians. The plaintiffs income claims were suppressed because
of immigration issues. The plaintiff has preserved this issue for
appeal.
The jury found the defendant 80% negligent, the plaintiff 20%
comparatively negligent and rendered gross awards of $________ for
pain and suffering and $________ for future medical bills.
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