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$1,700,000 result- cited in The New York Jury Verdict
Reporter
XVIII/2-43 Restaurant Accident - Infant Scalded By
Soup - First-Degree Burns To Chin - Second-Degree Burns To Chest
And Buttocks - Scarring - Multiple Skin Grafts
SETTLEMENT: John Doe, indiv. and as m/n/g of Baby Doe v. Chelsea GCA Realty, Inc. and Posa Posa Restaurant
Corp. 118352/97. Date of Settlement 3/29/00 New York Supreme
Pltf. Atty: Alan M. Greenberg, Manhattan
Deft. Atty: Craig L. Roberts of Robin, Schepp, Yuhas, Doman &
Harris, Manhattan, for Chelsea
Scott P. Taylor of Quirk & Bakalor, P.C., Manhattan, trial
counsel to Ross & Sambrato, Manhattan, for Posa Posa
This action, which settled prior to jury selection, resulted in
a structured settlement with a present value of $1,700,000, with
a guaranteed future payout, regardless of life expectancy,
totaling $7,025, 000. The infant Pltf. was 17 months old at the
time of this incident on 5/29/99 at Deft. Posa Posa Restaurant
in the food court of the Woodbury Commons Premium Outlets in
Central Valley. Chelsea GCA Realty, a Maryland Corporation, is
the owner of Woodbury Commons. At 1:45 PM, Pltf. mother was on
line in front of the cashier with the infant seated in a
stroller. The restaurant is set up in part with cafeteria-style
service where customers enter a 3-foot-wide aisle to choose
foods from a steam table behind the counter. The counter had
tubular rails for patrons to slide their trays along toward the
cashier. The counter also had a plastic/glass barrier (a sneeze
guard ) blocking customers from touching the steam tables, which
rose approximately 3 feet above the tubular railing. A customer
in line behind Pltf. s stroller spilled a 16-ounce paper takeout
container of minestrone soup from the tray, which landed on the
baby. Police on the scene within 30 minutes measured the
temperature of the serving container holding the soup in the
steam table at 170°. The individual who spilled the container
fled the scene and was never identified.
Against Posa Posa, Pltf. claimed that the soup temperature was
unsafe in that it exceeded 140° and was considered unsafe for
onsite consumption, that the container should have had a lid
placed on it by the counterman before passing it to the
customer, and that the customer aisle was too narrow and
increased the likelihood of accidents, especially during the
busy lunch hour. Against Chelsea GCA, Pltf. contended that the
premises owner negligently approved the design of the
restaurant, specifically the narrow aisle, despite reviewing the
blueprints. Pltf. s expert architect would have testified that
the blueprints called for a 5-foot-wide aisle.
Deft. Chelsea GCA would have contended that it exercised no
supervisory control over the restaurant, and that any negligence
on its part was not a proximate cause of the accident. Deft.
Posa Posa denied that the soup was too hot, and would have
argued that it needed to be kept at 170° for sanitary and
customer pleasure reasons. Posa Posa also contended that the
unknown patron was at fault, and should have been held
accountable, pursuant to CPLR Article 16. Posa Posa further
claimed that the aisle was wide enough and that Pltf. mother
caused the accident by jostling the stroller and knocking into
the customer s tray. Pltf. would have presented two companions
to corroborate her denial of bumping into the unknown patron.
Injuries: scald burns to 12% of the body, including first-degree
burns to the chest and second-degree burns to the chest and left
buttock. Pltf. was taken by helicopter to Westchester County
Medical Center where he was hospitalized for 10 days and
received a blood transfusion and a split thickness skin graft of
the right arm, chest, and cheek with right thigh and buttock
serving as donor sites. The infant later became a patient of the
Shriner s Burn Institute where he still reports for monitoring.
He underwent a Z-plasty scar revision to the right chest and
received Kenalog injections to reduce hypertrophic scarring. He
wore a Jobst garment on his head and arm for 1 year to flatten
scars on the chest and under his chin. His current prognosis
calls for more scar revision surgery to the chest due to loss of
elasticity as he grows, as well as scar revision upon reaching
his teens for removal of scar tissue under the chin.
Note: Pltfs. are New Jersey residents, Chelsea GCA is a Maryland
corporation, and Posa Posa is a New York corporation with its
principal place of business in Rockland County. Venue was placed
in New York County based on Chelsea's designation of New York
County as its principal place of business. Chelsea moved to
change venue to Orange County, but that motion was denied. Pltf.
moved for dismissal of a counterclaim and in a second motion, an
affirmative defense of culpable conduct against the mother,
citing New York law prohibiting claims of negligent supervision
against a parent. Deft. Posa appealed and the First Department
upheld the trial court s decision. See, Doe v. Chelsea GCA
Realty, Inc., et al., 1999 N.Y.Slip Op 10719 (A.D. 1 Dept.
1999). A zone of danger claim on behalf of the mother was
discontinued as part of the settlement. Deft. Chelsea's motion
for dismissal of the action as a lessor out of possession was
denied by the lower court and was under appeal at the time of
the settlement. Chelsea discontinued the appeal but is presently
pursuing a declaratory judgment action against CGU for the costs
incurred in defending this matter. Settlement apportionment:
Posa Posa paid out $1,000,000 from its primary policy, and
$700,000 from the $2, 000,000 excess policy held by Chubb.
Carriers: CGU (primary) for Posa Posa; Chubb (excess) for Posa
Posa; Liberty Mutual for Chelsea GCA.
Pltf. Experts: Pltf. would have called Prof. Harry Gaynor,
Ph.D., forensic burn expert, National Burn Victims Foundation,
Basking Ridge, New Jersey; Edwin Fellerman, restaurant design
consultant, Rivervale, New Jersey; Ronette Riley, architect,
Manhattan; Dr. Harvey Himmel, burn surgeon, Manhattan; Dr. Saul
Hoffman, plastic surgeon, Manhattan.
Deft. Experts: Deft. would have called Thomas Parisi, P.E.,
engineer, New City; Dr. Howard Cooper, plastic surgeon,
Manhattan; Patricia Bartholomew, Ph.D., food service consultant,
Manhattan; Harry Meltzer, architect, Great Neck.
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