$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