Fractured Femur, Case Settles For $725,000

Injuries alleged: badly fractured Femur and Face Disfiguration
Tried before judge or jury: Mediation
Special Damages: badly fractured Femur and Face Disfiguration
Amount of settlement: $725,000

On September 30, 2009, plaintiff was helping his sibling move from a third-floor apartment. He and his father were carrying a mattress on to the third floor porch where they intended to throw the mattress to ground below because the interior winding staircase was too narrow for the mattress.  Plaintiff understood that the landlord allowed him to use this method to move the mattress from the three decker.

As the plaintiff backed out on to the porch while holding one end of the mattress, he lost his balance, let go of the mattress, his arms flailing out to his side to break his fall against the balusters.  His crouched back struck the balusters. His 245-pound body hit the balusters with force enough that the top rail lifted and multiple balusters broke away "like toothpicks". The plaintiff fell 28 feet to the sidewalk below badly fracturing his femur and disfiguring his face.

Plaintiff underwent an internal fixation to treat the fractured femur. The plaintiff suffered several disfiguring scars to his head, face, lip and leg.

Plaintiff had been a Division II scholarship basketball player and now walks with a limp.

Suit was brought against the homeowner and the two-person construction Corporation (A) that installed the porch rail system alleging that the railing system failed to comply with the State Building Code requiring it to withstand a horizontal force of 25lbs/per square foot. The plaintiff also sued a second construction Corporation (B).

The defendant landowner had limited insurance and defendant Corporation A had a claims made policy; but at the time the claim arose, Corporation A had been dissolved and its claims made policy had lapsed.

Prior to the claim arising, one of the two principals of Corporation A formed a single person construction Corporation B. Plaintiff claimed Corporation B was a successor to Corporation A. During discovery, plaintiff's counsel established that Company B had assumed the assets and liabilities of Corporation A and by examining the two corporations bank statements, credit card statements and corporate papers.  As a successor corporation, Corporation B's claims made policy covered the plaintiff's claim.

Plaintiff's expert, an author of the State Building Code, was prepared to testify that defendants had failed to comply with the State Building Code by using brads to secure balusters to the rail system. Plaintiff's expert opined that the brads were incapable of handling the state required loads.

Defendants countered with their own engineering expert who constructed a replica rail system and demonstrated that the defendants' rail system met the Code requirements. Defendant's expert demonstration showed that the rail system he constructed withstood 200lbs of cinder blocks laid on to the balusters. Defendants' expert opined that given the plaintiff's weight, his body's force against the balusters was more than the resistance required by the Code. Plaintiff's expert was prepared to testify that defendant expert's demonstration did not accurately represent the incident rail system; and his demonstration was based on incorrect physics principles.

The case was settled after two days of mediation for $725,000.