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$900,000 result — cited in VerdictSearch.com
Negligent Maintenance – Slips, Trips & Falls — Slip and Fall
— Mall’s Carpet Cleaner Created Slipping Hazard, Worker Alleged
SETTLEMENT: $900,000
CASE: Rosa Bernstein v. Control Building Services, Inc.,
Simon Property Group, Inc, Simon Property Group, LP., SPG
Properties, Inc., Fashion Mall Partners, LP and the Westchester,
No 118868/02
3rd PARTY CASE: Simon Property Group, Inc., Simon
Property Group, L.P, SPG Properties, Inc., and Fashion Mall
Partners, LP v Barnes & Noble Booksellers, Inc d/E/a B. Dalton
Bookseller, Inc., No. 590241/04
COURT: New York Supreme. JUDGE: Barbara
Kapnick. DATE: 9/5/2008.
PLAINTIFF ATTORNEY(S): Alan M. Greenberg, Law Offices of Alan M.
Greenberg P.C., New York, NY; Matthew Tomkiel, Tomkiel & Tomkiel,
New York, NY
DEFENSE ATTORNEY(S): Susan B. Burns. Sokol, Behot &
Fiorenzo, Hackensack, NJ (Control Building Services Inc); James
Esposito, Berkman, Henoch, Peterson & Peddy, P.C., Garden City,
NY (Fashion Mall Partners, LP, SPG Properties Inc., Simon
Property Group Inc., Simon Property Group L.P., The
Westchester); David L. Metzger, Kanterman, O’Leary & Soscia,
L.L.P, White Plains, NY (Barnes & Noble Booksellers Inc)
FACTS & ALLEGATIONS: During the morning of Sept 6,
1999, plaintiff Rosa Bernstein, 42, a bookstore’s assistant
manager slipped while working at The Westchester, which is a
shopping mall that is located in White Plains. She fell and
sustained an injury of a knee.
Bernstein sued the mall; the mall’s contracted provider
maintenance, Control Building Services Inc.; the mall’s owners,
Simon Property Group Inc, Simon Property Group LP and SPG
Properties Inc.; and the mall’s manager, Fashion Mall Partners L
P. Bernstein alleged that the defendants were negligent in their
maintenance of the premises and that their negligence created a
dangerous condition.
Simon Property Group Inc., Simon Property Group L.P. and SPG
Properties impleaded Bernstein’s employer; Barnes & Noble
Booksellers Inc. They alleged that Barnes & Noble Booksellers
was negligent in its maintenance of the premises and that its
negligence created a dangerous condition.
Barnes & Noble Booksellers cross-claimed against Control
Building Services. Barnes & Noble Booksellers alleged that
Control Building Services was negligent in its maintenance of
the premises and that its negligence created a dangerous
condition.
Bernstein acknowledged that her fall occurred a few feet inside
of the bookstore, which was within the mall but not within the
mall’s scope of maintenance. However she claimed that she
slipped on water that was deposited during Control Building
Services cleaning of a nearby carpeted area of the mall’s common
walkway. She contended that the cleaning process involved the
use of a bonnet cleaner that has a rotating brush pad that
applies a soapy solution.
Bernstein claimed that the rotation
sprayed the solution several inches beyond the perimeter of the
carpet.
Bernstein also acknowledged that she did not see any liquid on
the bookstore’s tiled floor, and she further acknowledged that
she did not see anyone cleaning the tile or the carpet. However,
she contended that she felt a soapy substance on her hand and
jacket and saw an extension cord nearby on the carpet. She
claimed that the cord was normally used with the bonnet cleaner.
One of Bernstein’s co-workers claimed that, a few minutes prior
to the incident, a Control Building Services employee was
shampooing an area of the carpet about 100 yards away from the
bookstore.
The bookstore’s manager agreed that the carpet near the tile was
damp. He claimed that the bonnet cleaner’s use usually created a
puddle on the tiled area. Defense counsel noted that the
bookstores manager and Bernstein became live-in companions
several years after the incident.
Control Building Services’ counsel contended that cleaning was
not being performed in the immediate area of Bernstein’s fall,
and she argued that Bernstein should have maintained a better
lookout. She also contended that no one identified the source of
Bernstein’s fall, and she suggested that Bernstein could have
slipped on a spilled beverage or some other substance.
Barnes & Noble Booksellers’ counsel contended that the store’s
staff mopped during the evening hours and that nothing had been
applied to the store’s floor during the morning of the accident.
The mall’s manager and owners denied responsibility for the area
inside the store’s lease line. They claimed that Barnes & Noble
Booksellers’ lease specified that the tenant had to maintain its
premises.
INJURIES/DAMAGES: arthrodesis, arthrofibrosis,
arthroscopy; arthrotomy; catheterization, complex regional pain
syndrome; decreased range of motion; depression, meniscetomy,
reflex sympathetic dystrophy; steroid injection; torn medial
meniscus.
Bernstein claimed that she sustained a tear of her left knee’s
medial meniscus. The meniscus had been repaired surgically on
Aug 16, 1999, and Bernstein had resumed work. She claimed that
she was not suffering any residual pain or disabilities when the
instant accident occurred.
After the accident, Bernstein underwent conservative treatment.
However, in January 2000, she underwent arthroscopic surgery
that included a partial meniscectomy.
Bernstein continued to work, but she claimed that her left
knee’s condition steadily deteriorated during the ensuing two to
three years. She underwent repeated arthroscopic surgeries, but
she contended that the surgeries produced arthrofibrosis, which
is a formation of dense scar tissue that restricts a joint’s
mobility. As a result, she underwent arthrodesis, which is the
fission of a joint. In 2006, she underwent a total knee
arthrotomy—cutting of the knee’s joint. She subsequently
developed scar tissue that essentially froze the knee. The
condition necessitated two scar-breaking surgeries.
Bernstein claimed that she continued to suffer intractable pain.
In 2007, doctors determined that she was suffering complex
regional pain syndrome, which is a chronic neurological
condition that is characterized by severe burning pain,
pathological changes of bone and skin, excessive perspiration,
swollen tissue, and increased sensitivity to physical stimuli.
The condition’s pseudonym is “reflex sympathetic dystrophy.”
Bernstein underwent the injection of steroid-based painkillers,
the insertion of an indwelling catheter, the administration of
painkillers and prescription opiates, and the administration of
spinal nerve-block injections.
Bernstein’s injury produces a limp, and she contended that she
requires the use of a cane. She claimed that she has been
totally disabled since 2002, and she contended that she suffers
constant pain that produces depression.
Bernstein sought reimbursement of a $150,000 workers’
compensation lien and recovery of damages for her past and
future pain and suffering.
Defense counsel contended that Bernstein’s injury, surgeries and
residual conditions stemmed from a fall that led to the prior
tear of her left knee’s meniscus.. They also contended that she
did not suffer complex regional pain syndrome. They claimed that
the relevant symptoms were caused by damage of one of her left
leg’s nerves, and they contended that the damage occurred during
one of the arthroscopic surgeries.
RESULT: After Bernstein described her alleged
depression and residual injuries, the parties negotiated a
$900,000 settlement. Control Building Services’ insurer agreed
to contribute $850,000, and Barnes & Noble Booksellers’ insurer
agreed to contribute $50,000. Barnes & Noble Booksellers’
insurer also agreed to waive its workers’ compensation lien. The
remaining defendants did not contribute to the settlement, but
they dropped their bid to recover attorneys’ fees from Control
Building Services.
INSURER(S): Property Casualty Corp - for Barnes & Noble
Booksellers and Control Building Services
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