Premises Liability Child's Fall Over Railing ($2,000,000 settlement)

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Premises Liability - Apartment Building - Child's Fall Over Railing

Injury alleged: Fractured skull, brain damage, mental retardation

Name of case: Withheld

Court/case: Suffolk Superior Court, No. 94-00241

Tried before judge or jury: Jury, settled before trial

Name of judge: David M. Roseman

Special damages: $26,500, medical expenses

Amount of settlement: $1 million up front; structured payments of approximately $4.8 million guaranteed; approximately $12.5 million expected structured payout; total settlement present valued at $2 million

Highest offer: Settlement as stated above

Most helpful experts: Cynthia Chase, Ph.D., neuropsychologist; David Coulter, M.D., pediatric neurologist;

Mark Davidson, Coopers & Lybrand, accountant; Helen Kenney, Ed.D., educational consultant;

Todd Anderson, architect Insurance carrier

Withheld: Attorney for plaintiff:

Chris A. Milne and Robert K. Rainer, Rainer & Rainer, Boston

Other useful Information:

The minor plaintiff fell over a railing that gave way, failing 28 feet to the lobby floor below, in the common area of a 12-unit apartment building, The 8-year-old plaintiff had leaned against the railing and turned back to speak to her mother who was just several feet away when she fell over the railing. The minor plaintiff's mother was the only witness of the fall.

The defendant's insurer prior to litigation claimed that there was no notice of the looseness of the rail that had given way, and therefore, no liability. The insurer provided witness statements of employees pursuant to a reciprocal agreement that said that the rail had been inspected less than eight hours prior to the fall and was in good condition. The insurer also claimed that the defendant's records showed no complaints about the rail being loose.

In November 1993, a 93A demand letter detailing the plaintiffs' theory of liability and damages was sent with a demand of $2 million. The insurer offered nothing in response to this letter. Litigation was commenced in January 1994 after a year and a half of negotiations with the insurer and no offer of settlement.

The minor plaintiff sustained brain damage visible on an MRI. However, she had significant preexisting developmental delays. She had been born extremely premature (26 weeks). During her toddler and preschool years, she had experienced some generalized developmental delays likely associated with her prematurity. In the school year prior to her fall, the minor plaintiff had repeated first grade after having been held back the prior year.

The course of treatment included hospitalization after the fall for two weeks and surgery to relieve pressure on the brain. In January of 1994, one and a half years after the fall, a post traumatic seizure disorder was diagnosed. The plaintiff continued to receive special services and had passed each grade since the fall, Post fall neuropsychiatric testing found that the minor plaintiff was moderately retarded. A pre-fall IQ was not available.

The court ruled that allegations of misappropriation of funds by the defendant and indirect payments to HUD officials were not "irrelevant or immaterial" to this personal injury case.

The plaintiffs pleaded in the complaint that the poor condition of the rail and lack of compliance with the sanitary, building and access codes of the railing were directly caused by the defendant's misappropriation of in excess of $2 million received under HUD's supervision for renovation of the subject building. The plaintiffs further alleged that defendant's donations to the pet charity of the HUD director of housing caused the improper awarding of the purchase of the building to the defendants and HUD's lack of enforcement of code requirements, including the defective railing which caused the plaintiffs fall. These theories were pleaded so as to make the lack of notice of the particular violation claimed by the defendants irrelevant.

The apartment building is located in a Boston housing project consisting of 28 buildings which was purchased from HUD in 1988 as an investment by a limited partnership.

Published with permission of Lawyers Weekly