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Premises liability - Hazardous premises - Plaintiff trips and falls over unpainted platform step on sidewalk - Fractured wrist - Ongoing pain and limitation with future surgery needed.

Kings County, NY

In this premises liability matter, the plaintiff plumber claimed injury to his wrist when he tripped over a protruding step on the sidewalk. The defendant landowners and deli lessees denied liability, and argued instead that the subject step was open and obvious, and hence that the plaintiff was negligent in failing to watch where he walked.

The evidence shows that the 52-year-old plaintiff was walking at the intersection of Jamaica Avenue and 198th Street in Hollis, Kings County, New York. Just as he rounded the corner, he allegedly tripped and fell on a protruding concrete step going into a deli. The step had no paint on it and allegedly blended in with the sidewalk.

The plaintiff alleged that he suffered a fracture of the triquetral bone in his wrist. The wrist was cast and he underwent physical therapy after the cast was removed. He maintained that the fracture left him with neurapraxia and that he suffers continued pain and a loss of the range of motion of his dominant wrist. The plaintiff did return to work. but alleged that he now has difficulty performing activities of daily living and has been told that he should have surgery in the future.

The plaintiff brought suit against the property owner, the leasing deli, and the prior deli owner, alleging that they were negligent in failing to properly warn of the step, thus creating a dangerous condition. The prior deli owner was let out of the case prior to trial. The jury was to determine liability in this bifurcated case.

At trial, the plaintiff stated that he did not see the concrete step prior to tripping over it. His counsel presented an engineering expert who opined that the step was a dangerous visual trap, due to its color being the same as the sidewalk. The plaintiff’s counsel stated that the step should have yellow paint or some other visual cue to prevent pedestrian tripping.

The defendant store owner testified that the step had originally been yellow and that he had repainted it once in the three years he had owned the property. He admitted that no paint was present at the time of the incident. The leasing deli owner contended that his lease stated that he was not responsible for the maintenance of the front step.

The defense presented an engineering expert who testified that the step was in an open area and was obvious when one was walking down the sidewalk. He opined that the step did not need yellow paint to be seen. The defense presented photographs of the step in question and a witness’s description of the area. The defendant store owner maintained that the plaintiff failed to watch where he was going and that his own negligent actions were the sole proximate cause of his injury.

The plaintiff demanded $________ prior to trial. He asked for damages for past and future pain and suffering and past and future medical bills. At the end of the trial, but before deliberations, it was determined that the leasing deli owner was not responsible for the step and he was let out of the case. The jury deliberated on the claim against the property owner.

The jury unanimously found for the defendant, finding that the step was reasonably safe.

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