$2,950,000 result – cited in Verdict Search New York
Premises Liability – Negligent Repair and/or Maintenance Falling
Object – ‘Neglected’ Tree’s Limbs Fell, Killed Woman, Estate
Alleged
VERDICT:
$2,950,000
CASE:
Joseph Segal, as Administrator of Estate of Hinda Esther Segal,
Deceased, Shifra R. Berger & Mordechai M. Berger v. City of NY,
Mendel Weiss & Rachel Weiss. No. 9315/04
COURT:
Kings Supreme. JUDGE: Martin M. Solomon. DATE: 11/15/2007
PLAINTIFF ATTORNEY(S): Alan M, Greenberg Law Offices
of Alan M. Greenberg, New York, NY; W. Matthew Sakkas, of
counsel to the
Law Offices of Alan M. Greenberg, New York, NY
DEFENSE ATTORNEY(S): Sosimo J. Fabian,
Assistant Corporation Counsel; Michael A. Cardozo, Corporation
Counsel, New York, NY (City of New York); None reported (Mendell
Weiss, Rachel Weiss)
FACTS & ALLEGATIONS:
On July 22, 2003, plaintiff’s decedent Hilda Segal, 52, a
homemaker, and her daughter, plaintiff Shifra Berger, 28, a
schoolteacher, were walking on Avenue J, between East 18th and
East 19th streets, in Brooklyn. It was a stormy, windy
afternoon. As the women were passing a house that was located at
1810 Ave. 1, Ave limbs fell from a 50-year-old city-owned Norway
maple tree that was located on the home’s lawn. The limbs fell
from a height of about 17 feet, straight down in a domino
effect. One of the limbs struck the back of Segal’s head,
inflicting a fatal injury. Berger was struck by falling leaves
and brush, but she did not sustain an injury.
Berger and Segal’s husband, Joseph Segal, who was acting as the
administrator of his wife’s estate, sued the city of New York
and the owners of the property that was located at 1810 Ave. J,
Mendel Weiss and Rachel Weiss. The plaintiffs alleged that the
defendants were negligent in their maintenance of the tree.
Plaintiffs’ counsel subsequently discontinued the claims against
Mendel Weiss and Rachel Weiss. The matter proceeded to a trial
against the city.
Plaintiffs’ counsel claimed that the city had actual and
constructive notice of the tree’s propensity to fail in the
event of high winds, based on city inspectors’ eight visits to
the subject premises over a period of two years and four months
prior to the date of the incident. They contended that, during
that time, employees and inspectors from the New York City
Department of Parks and Recreation’s Brooklyn Forestry Division
had visited 1810 Ave. J to prune and inspect two city-owned
trees, one of which was acknowledged to be dead and the other of
which was the subject tree- Plaintiffs’ counsel claimed that the
subject tree had numerous external clues suggesting that the
limbs were dead or decayed and that any of these clues should
have been noticed during the inspections. Plaintiffs’ counsel
further claimed that these conditions should have prompted a
more thorough inspection, which would have revealed decay of
major limbs.
Plaintiffs’ counsel also claimed that there were indications
that the tree was laboring under physiological stresses and that
these constituted a living tree hazard. A post-mortem
examination of the tree by Brooklyn’s chief forester found
evidence that carpenter ants and insects had infested the fallen
limbs. Plaintiffs’ counsel contended that this finding further
demonstrated that the limbs had decayed long before the date of
the accident.
The plaintiffs’ expert arborist used the city’s own post-failure
photos, notes and measurements of the failed limbs to support
plaintiffs’ counsel’s claim that the tree had decayed. The
expert opined that the signs of decay were readily apparent and
should have been noticed by inspectors during a proper visual
inspection.
Defense counsel contended that the city’s inspectors acted
reasonably in maintaining and inspecting the tree. He claimed
that an external visual inspection of the tree did not reveal
signs of decay that would lead a reasonably prudent arborist to
recommend the removal of the tree. He further claimed that the
tree was inspected by at least six different individuals in a
two-year period, including a private contractor and that none of
them recommended that the tree be removed.
Defense counsel also contended that cross-sections of the tree
were sent to tree experts at Cornell University and that these
experts found no sign of any pathogens.
Defense counsel further claimed the storm, winds on the day of
the accident reached 60 mph and that other trees in the vicinity
also fell that day because of the extreme weather conditions.
INJURIES/DAMAGES: death; emotional distress;
fracture, skull; loss of parental guidance; post-traumatic
stress disorder; zone of danger
Segal sustained a fractured skull. She was placed in an
ambulance and transported to the emergency room of New York
Community Hospital, in Brooklyn. She was pronounced dead about
35 minutes after the incident. Segal, 52, was survived by bet
husband and three adult children.
An independent witness described Segal’s condition after being
hit by the limb, claiming that Segal’s brain fragments and blood
were mixing with rainwater and flowing into the gutter while
Shifra Berger, stood over her screaming. The plaintiff’s expert
pathologist opined that Segal suffered eight to 10 seconds of
pain and suffering before she lost consciousness and died.
Segal’s estate claimed that Berger and her two siblings suffer
from the loss of the close relationship each enjoyed with Segal.
Berger maintained that she was extremely close to her mother and
that she had assisted in raising three children, including a
special-.needs child. The estate also claimed that Segal used to
advise her children on raising their own kids, dealing with
their spouses and in-laws, and medical issues. It contended that
the family used to gather together frequently.
The children claimed that the loss of Segal created a vacuum in
their father’s life and in the lives of their extended family.
Segal’s estate sought recovery of wrongful-death damages that
included damages for Segal’s conscious pain and suffering,
damages for the estate’s loss of household services, and damages
for the children’s loss of parental guidance.
Berger claimed that she suffered residual emotional distress and
post-traumatic stress disorder. She contended that she has been
under a psychologist’s care since her mother’s death and that
she suffers irritability as a result of the incident. She also
claimed that she experiences anxiety attacks whenever the
weather threatens to rain or storm, especially in the summer,
and that as a result, she is unable to leave her home.
Berger’s husband claimed that his wife was unable to cope with
the incident and that she was unable to run their household for
about one year after her mother’s death.. He claimed that their
marriage continues to be plagued by his wife’s inability to
control her emotions and that she suffers panic anxiety during
days when the weather is similar to that on the day of the
accident.
Berger sought recovery of zone-of-danger damages and damages for
her emotional distress.
Berger’s husband, Mordechai Berger, sought recovery of damages
for his loss of consortium.
Defense counsel contended that Segal was immediately knocked
unconscious and did not endure any conscious pain and suffering.
He argued that, given the nature of the injury, it was
impossible as a matter of science for Segal to have experienced
pain and suffering.
The defense’s expert psychiatrist disputed the severity of
Berger’s post-traumatic stress disorder and opined that it might
resolve over time. Defense counsel relied on the records of
Berger’s psychologist to show that she only made seven visits to
see him from the date of the incident up to July 2004. He
claimed that Berger’s last visit was in September 2007 and that
the psychologist’s note for that visit clearly stated that the
visit was “pushed” by Berger’s lawyer.
Defense counsel also disputed testimony that numerous telephone
sessions between the psychologist and Berger were conducted,
given that none were documented in her chart.
During cross-examination, Berger’s psychologist acknowledged
that it was bad practice not to note on a patient’s chart when
care was rendered.
RESULT: The jury found that the city was liable for the
tree’s failure. It determined that the plaintiff’s damages
totaled $2.95 million.
SHIFRA BERGER: $250,000 past loss of parental guidance,
$200,000 future loss of parental guidance (15 years), $1,500,000
past emotional distress, $250,000 future emotional distress (50
years) = $2,200,000
ESTATE OF HINDA SEGAL: $400,000 past loss of parental
guidance, $350,000 conscious pain & suffering = $750,000
DEMAND: $1,500,000 (from city of New York)
OFFER: $250,000 (by city of New York)
TRIAL DETAILS: Trial Length: 10 days, Jury Deliberations:
8 hours, Jury Vote: 6-0; 5-1 (damages for loss of parental
guidance, Mordechai Berger’s damages); 6-0 (all other
questions), Jury Composition: 3 male, 3 female
PLAINTIFF EXPERT(S): Wayne Cahilly, arboriculture,
Dumont, NJ; Alan M, Leiken, Ph.D., economics, Stony Brook, NY
(did not testify); Christopher J. Lulley, Ph.D., horticulture,
New York. NY (did not testify); David Pelcovitz, Ph.D,,
psychology/counseling, Great Neck, NY; Karen Snover-Clift,
agriculture, Ithaca, NY; Lone Thanning, M.D., pathology,
Huntington, NY; George Wright, CCM, meteorology/climatology, New
York, NY (did not testify)
DEFENSE EXPERT(S): Thomas Ching, Ph.D., horticulture,
Brooklyn, NY; William H. Kaplan, M.D., psychiatry, Great Neck,
NY; Adhi Sharma, M.D., emergency medicine, Freeport, NY; William
Sherman, meteorology/climatology, Hopewell Junction, NY; Terry
Tattar, agriculture, Amherst, MA (did not testify)
POST-TRIAL: Defense counsel’s post-trial motion is
pending. Defense counsel has also expressed an intention to file
an appeal. Plaintiffs’ counsel has expressed an intention to
move for additur for the loss-of-parental-guidance award and
Mordechai Berger’s null loss-of-consortium award.
—Tim Heinz
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