Premises Liability - Parking lot’s storm drain a trap, plaintiff claimed

Case Type: Dangerous Condition, Premises Liability - Trip and Fall, Premises Liability - Parking Lot
Case: No. 5851/04
Venue: Dutchess Supreme, NY
Judge: Christine A. Sproat
Date: 06-09-2006

PLAINTIFF(S)
Attorney: Lawrence A. Breslow; Rutberg & Associates P.C.; Poughkeepsie, NY, for Sharon E. Plaintiff, Edward Plaintiff
Expert: None

DEFENDANT(S)
Attorney: Bruce A. Torino; Torino & Bernstein, P.C.; Mineola, NY, for BJ’s Wholesale Club Inc. Martin Tackel; Tackel & Varachi; White Plains, NY, for Alpine Improvements, LLC
Expert: None

Insurer: Arch Insurance Group for both defendants

Facts: On Jan. 24, 2004, plaintiff, 46, a benefits administrator, was crossing the parking lot at the BJ’s Wholesale Club on Route 9, in Wappingers Falls. As she was pushing her shopping cart, the front wheels suddenly dropped into the spaces between the metal bars of a storm drain. The cart stopped, and its rear lifted off the ground and struck her in the knees. She fell to the parking lot pavement and struck and injured her right knee. Plaintiff sued Natick, Mass.-based BJ’s and the building’s owner, Alpine Improvements, LLC. She alleged that the defendants were negligent in their maintenance of the lot and that their negligence created a dangerous condition. Plaintiffs counsel claimed that the drain constituted a trap-like condition. He also argued that BJ’s provided the shopping cart and had notice that the wheels could become lodged in the grate. The defense argued that the parking lot was not dangerous and that Plaintiff was negligent for failing to avoid an open and obvious condition. BJ’s acknowledged that it supplied the cart to Plaintiff. However, it claimed that the location and selection of the storm water drain grate was the responsibility of Alpine. Alpine’s counsel argued that it did not supply the shopping cart, that the parking lot was properly graded and that it had no notice of any dangerous condition. A building-department inspector testified that there was no improper selection or placement of the grate.

Injury: Plaintiff was transported to Vassar Brothers Hospital, in Poughkeepsie. She underwent minor treatment. Several weeks later, an orthopedist determined that she had sustained tears of her right knee’s lateral and medial menisci. The tears were repaired via an arthroscopy and followed by six weeks of biweekly physical therapy. She acknowledged making a good recovery. Plaintiff claimed that she experienced pain and discomfort in her daily life activities for several months. She sought recovery of damages for her past and future pain and suffering. Her husband presented a loss-of-services claim. The defense contended that Plaintiff’s knee injury healed well.

Verdict Information: The parties agreed to a $69,500 pretrial settlement. Alpine’s insurer agreed to contribute $59,500, and BJ’s insurer agreed to contribute $10,000.

Editor’s Comments: Alpine Improvements’ counsel did not respond to a faxed draft of this report and a phone call.