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Kings County, NY

The 69-year-old plaintiff contended that despite actual and constructive notice, the defendant MTA negligently failed to repair a gouge in the concrete on the platform at the top of the staircase that was one to two feet in length and two to four inches deep. The plaintiff contended that as a result, she tripped over the defect and fell 12 to 15 steps down the stairway. The plaintiff maintained that she suffered a closed head trauma and a TBI to both the frontal lobe and cerebellum, as well as a seizure disorder. The plaintiff further maintained that she suffered a severe fracture to the acetabulum. The plaintiff contended that she was left without the ability to speak, suffers urinary incontinence and will is permanently confined to a wheelchair. The plaintiff further contended that despite the brain damage, she retains sufficient cognitive ability to be fully aware of the nature of her plight.

The plaintiff maintained that as she was traveling home after working, she tripped over the defect at approximately 4:45 in on December 12th, and fell down the staircase. The plaintiff established that on October 8th, the defendant received a complaint about the same defect and nonetheless failed to properly repair it. The plaintiff contended that although prior written notice was not required in this case against the MTA, such notice existed in the defendant’s own records which described a defect in the same location.

The defendant’s protocol required three individuals, including the token clerk, the station supervisor and the station cleaner, fill out reports and all of these reports reflected that the plaintiff fell from the top of the stairs. None of these reports, however, indicated that the claimed defect was present and the defendant contended that the plaintiff’s claims should be rejected. The plaintiff countered, through the presentation of an eyewitness who supported the plaintiff’s position that she tripped over the defect, falling. The plaintiff also pointed to photographs of the area taken several days later, arguing that the defendant’s position should clearly be rejected.

The plaintiff established that the defendant maintains a priority system relating to the need to repair different defects, including a high priority which would require that repairs be made as quickly as possible, a middle level in which repairs should be made within several weeks and a third category that reflected that corrections could be done in 30 to 60 days. The plaintiff maintained that the supervisor agreed that a defect of this nature should be placed on the high prior list. The defendant contended, however, that the gouge was properly repaired shortly after it received the complaint on October 8th.

The plaintiff countered that in view of the photographs showing a the defect several days later and the supporting testimony of the plaintiff’s eyewitness, this defense contention should be rejected. The plaintiff maintained that the gouge was situated on the right side of the landing. The plaintiff contended that two of the photographs taken by the defendant depicted the left and left and center portions of the landing in which the defect was not within the field of the photographs. The plaintiff also maintained that although a third photograph contained the area of the defect, but was obscured because a defense worker was standing on it.

The plaintiff contended that she suffered a closed head trauma and subdural hematomas in both the frontal lobe and cerebellum. The plaintiff maintained that the brain injury led to a seizure disorder and that the plaintiff suffered the first major seizure approximately one month after the fall. The plaintiff also maintained that she was left without the ability to speak and the plaintiff’s neurologist maintained that the area injured also controls the ability to use sign language.

The plaintiff contended that although she retains sufficient cognitive ability to remain aware of per past life and the extent of her injuries, she is unable to communicate. The plaintiff also maintained that the defense examining neurologist concurred that the plaintiff cannot speak or sign because of the brain injuries sustained in the fall, that the condition is permanent in nature and that she is aware of her limitations. The plaintiff contended that the jury should consider that the frustration and depression that is attendant to this disability makes the injuries all-the-worse. The plaintiff also contended that the seizure disorder caused permanent urinary incontinence and contributed to the confinement of the plaintiff in a wheelchair.

The plaintiff also suffered a severe fracture to the acetabulum. The plaintiff maintained that the brain damage prevents the plaintiff from participating in rehab that she would otherwise have for this fracture, and that this factor also contributes to her inability to regain the ability to walk. The plaintiff resides at home. The plaintiff’s husband testified that although care through institutionalization might have advantages in some respects, the plaintiff would not receive the love that she does by living at home and the decision to keep her at home has thereby been made.The jury found the defendant ________% negligent and awarded $________, including $________ for past pain and suffering and $________ for future pain and suffering over 16 years.

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