Fall down Case: No. 1903/93

Venue: Dutchess Supreme, NY
Judge: Judith A. Hillery
Date: 03-24-1999

PLAINTIFF(S)
Attorney: Martin P. Rutberg; McCabe & Mack, L.L.P.; Poughkeepsie, NY

DEFENDANT(S)
Attorney: Richard Bentzen; Cerussi & Spring; White Plains, NY

Insurer: Self-insured for first $100,000 Traveler’s Insurance Company for excess

Facts: On 5/17/96 at approximately 8:45 PM, Pltf., a 55-year-old antique dealer, was walking to her automobile in Deft.’s parking lot when she stepped into a hole in the pavement. The hole measured about 1.5 feet deep, 1 foot wide, and 1.5 feet long. Pltf. claimed constructive notice. She also argued that the absence of black top in or around the hole, as well as the size of the hole, proved that the condition had been present for an appreciable period of time. Deft. argued that there was no proof of the length of time the condition existed; that the condition could have arisen while Pltf. was in the mall, as evidenced by the fact that Pltf. did not see the hole when she arrived at the mall in daylight. Offer: $25,000; demand: $150,000.

Injury: (Not before the jury - settled for $129,500 after the liability verdict) non displaced fracture of the distal tibia. Eleven months later, due to a weakness in the ligaments, Pltf. sustained a refracturing of the lateral malleolus; there was no surgery.

Verdict Information: Pltf.’s verdict on liability (6/0). The case then settled for $129,500. Jury: 2 male, 4 female. The jury deliberated for 1.5 hours. The trial lasted 5 days. Size of edior array:0

Demonstrative Evidence: Photograph of hole; photograph of mall property.