United States: Jim Whalen Secures Defense Verdict In Slip And Fall Case
Last Updated: March 28 2017

New York PartnerJames T. Whalen Jr. recently obtained a defense verdict with his co-counsel in a personal injury suit against the owners and managers of an apartment building in Bronx County, New York.

The case was brought by a boiler repair union mechanic who fell on a staircase leading to the first floor basement of the building while he was carrying heavy bags down the stairs. The plaintiff underwent knee and shoulder arthroscopic surgeries as well as a lumbar fusion.

The plaintiff attempted to prove, with the assistance of safety expert William Marletta, that the stairs on which he fell violated several provisions of the New York City Building Code because the stair risers were not uniform and the stairs were missing a handrail. The plaintiff alleged that these violations were a substantial factor in causing his accident.

We argued that the plaintiff was the sole proximate cause of his accident, especially since he had used the staircase before and was aware that the stair risers were not equal.

Furthermore, we argued that the plaintiff's expert improperly applied the 1968 Building Code to a building constructed in 1963. Under the prevailing 1938 Building Code, the stairs were not an "exit stair" — or stairs allowing for "a means of egress from the interior of the building to an open exterior space" — for the purposes of the applicable code and therefore were not required to have a handrail or uniform stair risers.

Even if the 1968 Building Code did apply, we argued that the code still required the stairs to be exit stairs and not simply stairs in the interior of the building. We cited a 2006 First Department case supporting our position that "stairs leading from the first floor of the basement are not 'interior stairs' and therefore not required to have uniform treads, risers, or handrails."

This pivotal defense defeated the plaintiff's legthy argument that the steps, as built, violated the New York City Building Code, which would allow the jury to infer the defendant was negligent. The judge held two charge conferences on the issue and gave a modified charge to the jury.

During the damages portion of the trial, the plaintiff called three orthopedic surgeons, life care expert Joseph Carfi, and economist Dr. Alan Leiken. According to Dr. Leiken, the plaintiff's future loss of earnings was in excess of $1.5 million with future medical expenses in excess of $500,000.

On cross-examination of the plaintiff's spine surgeon, the surgeon conceded that many patients resume normal daily activities of living and recreational sports after spinal surgery. We argued that the plaintiff was one such person, presenting various photographs pulled from his social media accounts showing him skiing and doing other activities during his post-accident vacations around the world.

After a nine-day trial, the jury deliberated for about three hours before delivering a defense verdict. It agreed that the plaintiff should have known the conditions of the stairs since he had been there before and the difference in riser heights did not cause him to fall.

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