$9 Million Settlement for 14-Year-Old Minor Injured in Premises Liability Case

Court and County
Supreme Court, Nassau County

Age and Occupation of Plaintiff
At the time of the accident, Plaintiff was a 14-year-old high school student. When the case settled, he was a 19-year-old college student employed as a counter worker at a pizza parlor.

Description of Case
The accident occurred one evening when Plaintiff and two friends were standing in the parking lot of a shopping center near a utility enclosure on the property. This utility enclosure was owned by one of the defendants and managed by two other defendants. It was constructed by the defendant construction company as part of a renovation in the shopping center for a retail shoe company, another defendant. As Plaintiff was reaching up to put his hands on top of a wall that was part of the utility enclosure, a large piece of the wall suddenly collapsed onto him, seriously injuring his right arm.

Plaintiff made claims against the property owner of the shopping center, who leased part of the shopping center to the defendant shoe company. In its lease agreement with the shoe company, it is stated that the property owner had a duty to maintain and repair common areas of the property, including the utility enclosure.

Plaintiff also made claims against the property manager, who, on the property owner’s behalf, managed the site, including the accident location. As evidence, we intended to introduce a testimony from the defendant property manager, who admitted that he only visited and inspected the site every other year. Additionally, Google Maps images of the utility enclosure showed that the property was in a state of obvious disrepair in the years leading up to the accident. This should have been noticed and remedied by both the property owner and manager.

We argued on behalf of the plaintiff that the company who constructed the wall of the utility enclosure was negligent because they failed to construct the wall in accordance with the plans for its construction. The wall was not properly secured with reinforcement bars, was built much higher than was approved on the plans, and was not properly fitted with a concrete cap. This allowed the elements to make their way into the wall over the course of several years and was an additional cause of its instability.

We also argued for the plaintiff that the defendant shoe company, who hired the defendant construction company to build the wall, had control over the wall during its construction. The shoe company inspected the work and ensured that the construction was performed according to the plans. They also conducted a walk-through and gave final approval of the work that was done on the project. The shoe company admitted that if their representative for the project saw something that was not built according to the plans and specifications, he should have had it corrected.

Injuries and Damages
Plaintiff suffered the following injuries as a result of the accident:

• Open comminuted humerus fracture
• Open olecranon fracture
• Comminuted fraction of the ulna at the coronoid
• Open elbow dislocation
• A 25-centimeter traumatic laceration extending from the radial forearm through the cubital fossa, extending laterally through the elbow and posteriorly and laterally to the distal humerus and into the mid-shaft of the humerus posteriorly with grossly ruptured flexor and extensor tendons of the arm
• Loose large segmental bone loss with devitalized bone protruding through the skin and through the open wound site
• Ruptured lateral antebrachial cutaneous nerve and superficial radial nerve
• Complete rupture of the muscles bellies of the triceps
• Triceps tendon rupture
• Open right biceps tendon rupture
• 80% rupture of the biceps muscles belly laterally
• Brachioradialis rupture
• Coracobrachialis rupture
• Extensor Carpi Radialis Brevis rupture
• Extensor Carpi Radialis Longus rupture
• Extensor Digitorum Communis rupture
• Extensor Indicis Proprius rupture
• Open elbow joint with intra-articular loose fragments
• Gross contamination of the wound with the road debris and gravel

As a result of these injuries Plaintiff underwent several surgical procedures, including an open reduction internal fixation surgery involving the right elbow, hardware removal surgery, and irrigation and debridement of the wound.

Plaintiff also made claims of economic damages for future cost of healthcare and future loss of employment opportunities.

The defendants’ medical experts argued that the Plaintiff demonstrated a partial orthopedic disability but could still perform normal daily activities within pain and range of motion limits. They also argued that the Plaintiff did have a decrease in radial sensory nerve function, but otherwise, neurologically he was intact without evidence of significant radial nerve motor dysfunction or any other peripheral nerve injuries. They argued he would not require any further neurological treatment.

If this case had gone to trial, Defendants would have introduced surveillance video showing the plaintiff using his right arm to perform daily living activities such as removing snow from his vehicle, carrying a grocery bag, and closing his car door. He is also seen in the video carrying a box of diapers with both hands. Defendants would have also introduced evidence that the Plaintiff is gainfully employed in a job that requires him to use both hands and arms and is now the father of a baby.

With regard to Plaintiff’s allegation of future loss of employment opportunities, the defendants would have set forth at trial that the Plaintiff is currently a full-time college student and employed during his non-school hours. The defendants’ vocational rehabilitation expert and expert economist argued that Plaintiff’s educational attainment potential and work life expectancy are unaffected by his injuries, and there is no basis to assume that there will be a reduction in his lifetime earnings potential.

The Defense
The property owner and property manager defendants would have argued at trial that the plaintiff could not prove they created the alleged defect in the utility enclosure wall. They would also have argued that any defect in the construction of the wall was the fault of the defendant construction company as builder of the wall.

The defendant shoe company would have argued at trial that it had no obligation under its lease agreement to maintain and repair the utility enclosure after it was constructed by the defendant construction company, and that they had no notice of the wall’s defective condition as they had no obligation to inspect or maintain the common areas of the property.

The construction company would have argued at trial that, in the 10 years between the time they constructed the wall and the time it collapsed, they were never called back to the premises to repair the wall and had no notice of any issues related to it.

Despite the potential for multiple arguments from the defendants, we were able to prevail and reach a settlement before the case proceeded to trial.

Settlement
This case settled before trial for $9,000,000.

Handling Attorneys
This matter was handled by firm Partners Daniel P. O’Toole and Frederick Aranki.