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$1,989,827 result- cited in The New York Jury Verdict
Reporter
XI/40-3 Firefighter Injury - Rusted Fire Escape Ladder
- Crush Injury To Heel And Fractured Vertebra
SETTLEMENT: Anthony DiBello v. City of New York 9252/90. 7-day
trial. DATE: 3/8/1994. JUDGE: Walter B. Tolub, New York Supreme.
VERDICT: $1,989,827. Breakdown: $400,000 for past pain and
suffering; $200,000 for future pain and suffering; $100,827 for
past lost earnings; $1,289,000 for future lost earnings. Jury: 2
male, 4 female.
A post-trial motion is pending. This case will be reproduced in
its entirety, along with the post-trial decision when it is
rendered.
PLAINTIFF ATTORNEY(S): Alan M. Greenberg of Barton & Zasky, Manhattan
DEFENDANT ATTORNEY(S): Gordon D. Miller, Asst. Corp. Counsel
FACTS: On 6/8/89 at 4 PM, Plaintiff, a 34-year-old New York City
firefighter, was responding to an alarm about a gas leak at a
City-owned Housing Preservation & Development (HPD) tenement
building at 280 West 113th St. in Manhattan. Plaintiff testified
that he was descending a fire escape drop ladder when the J-hook
holding the ladder broke away from the fire escape frame,
causing Plaintiff to fall 15 feet to the sidewalk. Subsequent
examination revealed that the bolts holding the J-hook were
corroded and held in place by rust and dried paint. Plaintiff
produced photographs of the fire escape and produced the actual
J-hook involved to show that they were both rusted. Plaintiff
contended that Defendants violated General Municipal Law 205(a) and
Housing Maintenance Code 2074 which requires that building
owners scrape and repaint fire escapes when they begin to rust.
Defendant's witnesses conceded on cross-examination that the fire
escape had not been painted for at least 10 years prior to this
accident. They also admitted that the bolts had never been
examined. Testimony indicated that HPD policy is to make
periodic visits to each building and to visually check the fire
escape from the street, rather than make a close examination to
check for rust or other defects. Defendant argued that its
superintendent had no problems with the ladder when he was on
the fire escape earlier on the day in question in an attempt to
gain access to the apartment with the gas leak. The
superintendent testified that he had been on the fire escape
five or six times over the 10 years prior to the accident and
that he had never noticed rust or any other defect.
INJURIES: crush injury to the left heel; interior compression
fracture of L-1 with 30% loss of height in the vertebra;
neuropathy to the right heel. Plaintiff retired in October 1992 on a
disability and pension. Defendant argued that Plaintiff was not injured
as seriously as he claimed and contended that he was able to
perform some kind of sedentary work. Plaintiff, a former carpenter
and pool installer, testified that he is unable to perform any
kind of manual labor for extended periods.
NOTE: The jury heard evidence about the $33,000 annual pension
that Plaintiff receives from the Fire Dept., but was charged to
disregard it and to disregard any discounting of the present
value in considering lost earnings. Demonstrative evidence:
enlarged photos of the building, the J-hook, and fire escape;
enlarged photos of the building with a computer-generated vinyl
overlay showing what the fire escape looked like with the J-hook
connected to it; the actual J-hook involved; model of the spine
and leg; economic chart showing past and future lost earnings.
OFFER: $750,000. DEMAND: $1,200,000.
JURY DELIBERATION: 2 1/2
hours.
PLAINTIFF EXPERTS: Dr. Philip Vansky, orth. surg., Manhattan;
Dr. Howard Hertzberg, orth. surg., Manhattan; Milton Dirienzo,
physical therapist division of the NYCFD ( testified about
pension and lost earnings); Lt. Raymond Hauser, overtime control
division of the NYCFD; Dr. Conrad Berenson, Ph.D., economist,
Woodbury.
DEFENDANT EXPERTS: There was no expert testimony for
Defendant
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