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New York County, NY

In this transit authority negligence action, the plaintiff contended that the defendant negligently maintained the steps at a subway station such that a hazardous condition was present when she fell on the steps sustaining serious injury. The defendant denied any negligence and asserted that there was no hazard at the site where the plaintiff fell.

The plaintiff claimed that she was descending the stairway S-1, on the downtown side of the number 6 IRT station, when she tripped on a crack on a step three steps above the stairway landing. The plaintiff was taken by ambulance to Lenox Hill Hospital where she was treated and released with no fractures. The defendant cross-examined the plaintiff who could not explain how her right foot got caught in a crack on the tread of the step or why she fell backwards on her back and slid down three steps if she tripped as opposed to slipped on the step.

The plaintiff was referred by her lawyer to a chiropractor with whom she treated for three years, two times a week for two years and once a week for one year. The plaintiff’s chiropractor accepted a lien, which amounted to over $________, on any recovery resulting from this action. At trial, the plaintiff’s chiropractor testified as to the plaintiff’s injuries and treatment.

The defendant agreed that the plaintiff probably fell on the steps at the defendant’s subway station, but denied any negligence. The defendant argued that there was no hazard on the step where the plaintiff fell and that, as supported by the plaintiff’s own testimony on cross-examination, she likely slipped and fell backward rather than tripping on an uneven stair, whereupon she likely would have fallen forward.

At trial, the plaintiff called a structure maintainer for the NYCTA who testified that the crack on the stairway was only cosmetic. When called to the stand, the defendant’s witness testified that he conducted a file search encompassing the two years prior to the subject incident and up to two days afterwards and found no call reports for service to repair the subject stairway. The defendant’s witness was examined about the photographs of the step and he testified that the tread showed evidence of repair with either concrete or epoxy cement, but he was of the opinion that the crack depicted in the photo was superficial in nature.

The defendant’s witness said that only by seeing the step in person could he give a definitive opinion that it was a Class C condition requiring repair within 60 days. The defendant also called a physician, boarded in orthopedic surgery, and the I.M.E. physician who examined the plaintiff for the defense. The defendant’s expert distinguished chiropractic treatment from medicine. He testified as to how he conducted the independent medical examination of the plaintiff. The defendant’s expert opined that, based on his examination of the plaintiff, she had resolved neck and back strains/sprains and needed no further therapy as of the date of the examination.The jury returned a compromise verdict that found the defendant negligent, but awarded no past or future pain and suffering. The jury awarded the amount of medical liens and loss of earnings, reduced by 50% for the plaintiff’s contributory negligence, for a total award of only $________. The case was subsequently settled for an undisclosed sum.

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