FALLDOWN – DEPRESSION IN PARKING LOT – TRIVIAL DEFECT DEFENSE – FRACTURES OF FIFTH METACARPAL, RIGHT WRIST, AND FIFTH METATARSAL

SETTLEMENT: Matilda and Dominic Guerriero v. 255 Mall, L.L.C.; Jeffrey Management; and Waldbaums a/k/a The Great Atlantic and Pacific Tea Company; and Broadwell Management Corp. 030251/00 Date of Settlement 10/31/02 Queens Supreme

Pltf. Atty:    Todd D. Greenberg of Addabbo & Greenberg, Forest Hills
Deft. Atty:  Richard Harms of Ohrenstein & Brown, L.L.P., Garden City

     This case settled while defendant’s motion for summary judgment was pending for $75,000.  On 10/19/00 at about 2:30 PM, plaintiff, a 73-year-old woman, fell in the parking lot of the Waldbaum’s Supermarket located on Union Tpke. In Queens.  Plaintiff was shopping with her husband when she tripped and fell due to a depression in the parking lot which measured approximately 9 inches long, 4 inches wide, and 1 inch deep.  Defendants contended that they had no notice, and that in any event the defect was trivial.  Defendants brought a motion for summary judgment after plaintiff was given a trail preference because of her age.  Plaintiff argued that the defect was not trivial, that the defect was a trap and a nuisance in that a faded parking lot line went right over the defect, hiding it from plain view.  Plaintiff also argued that photographs taken immediately after the event indicated that the defect must have been there for a length of time that would have supplied the requisite notice for defendants.  Plaintiff further argued that the lines that were painted appear to be painted right over the defect which would give defendants actual notice.
     Injuries:  non-displaced spiral fracture of the right fifth metacarpal; Colles’ fracture of the right wrist; Jones fracture of the left fifth metatarsal through the base of the left foot.  Carrier:  United States Fire Insurance Company.

Pltf. Expert(s):     Plaintiff would have called Richard Berkenfeld, P.E. engineer, Berkenfeld, Zollan Associates, L.L.P., Great Neck