A jury in Orange County is scheduled to consider whether a pious man who believes God answered his prayers by curing his partner of cancer can recover damages against a church for the leg he lost after the crucifix where he made his devotions toppled on him.
Jury selection is slated for Jan. 22 before Orange County Supreme Court Justice Elaine Slobod (See Profile) in a case that hinges on whether employees at St. Patrick’s Roman Catholic Church of Newburgh were involved in securing a 530-pound crucifix to its base when the statue was erected more than 20 years ago.
Slobod already has held that the church did not have actual or constructive notice of any defect, that the defect was not discoverable through a visual inspection and that “the law does not impose a duty on a church to climb on every monument or statue to determine whether it would fall.”
However, she let the case go forward on the allegation that the church was negligent in securing the cross to the base.
Jimenez v. St. Patrick’s, 2439/2011, involves David Jimenez, 44, a deliveryman for a bakery and pizzeria who often prayed fervently at the cross outside the church for his partner when she was stricken with cancer.
Jimenez’s lawyer, Kevin Kitson of White Plains, described Jimenez and Delia Solis as devout Catholics who immigrated to the United States from Mexico nearly 20 years ago. They have three children, ages 3, 13 and 17, Kitson said.
After Solis recovered, a grateful Jimenez continued to pray at the statue several times a week. But Jimenez noticed that the statue, which had been subjected to the elements for at least two decades, was getting grimy, and he obtained permission from the parish priest to clean it on May 30, 2010.
Jimenez was standing on the base and moving from one side to the other to clean Jesus’ face while holding the cross-beam of the crucifix for support. Suddenly, the structure tumbled forward, knocking Jimenez to the ground, falling on him and crushing his left leg. The leg was amputated below the knee.
Jimenez sued the church for more than $5 million. The church raised more than $7,000 for his family, but Kitson said that Solis has been unable to work since the accident.
Last spring, the two sides engaged in a spirited debate over a summary judgment motion after a wide-range of Labor Law allegations were withdrawn.
The church, represented by Rivkin Radler partner Frank Raia, insisted that it could not be held liable for negligence, notwithstanding the fact that the plaintiff had obtained permission to clean the statue and thereby put the defendant on notice.
“New York case law is clear,” Raia argued. “The accident-causing condition must be both visible and apparent. Here, it is neither. Moreover, even if the Court was so inclined to hold that there was an issue of fact as to whether a defect existed, said defect was ‘latent’ and therefore constructive notice may not be imputed to the Defendant.”
Raia relied heavily on a recent decision by the Appellate Division, Second Department, Spindell v. Town of Hempstead, 92 AD3d 669. Spindell, decided Feb. 7, centered on a plaintiff who was leaning against a 1,700-pound granite monument in a public park when the monument fell on his foot from an unstable pedestal.
The Second Department reversed the trial court and dismissed the complaint against the town, but not the company that had erected the monument. It said the town did not create the allegedly dangerous condition, did not have any role in installing the monument and had no notice of any defect.
In opposition to Raia’s summary judgment motion, Kitson distinguished this case from Spindell, claiming that St. Patrick’s Church, unlike the town of Hempstead, had played a role in attaching the monument to its base, “using a lag screw shorter than a pinky finger inserted into a hold larger than a thumb.”
Kitson argued that negligence can be inferred under the doctrine of res ipsa loquitur.
Slobod, in a decision in July, rejected nearly all of the plaintiff’s arguments and accepted nearly all the arguments of the defendant. Yet she allowed the case to proceed.
“Defendant argues that ‘St. Patrick’s is not a monument company. St. Patrick’s is not an engineering company. St. Patrick’s is not a construction company.’ It does not necessarily follow, however, that church employees in years more than twenty past did not secure the cross structure to the base when the two were obtained,” the ruling said.
Raia declined to comment.
Kitson did not respond to calls for comment.
@|John Caher can be contacted at email@example.com.