Omitting to file a bystander-trauma claim in behalf of a teenager who witnessed his brother’s death from a fall down an elevator shaft has landed a plaintiff lawyer in a malpractice suit.
New Jersey law recognizes such claims, but Parsippany solo James DeZao failed to include one in the suit he filed for the parents of the deceased child, Smith v. Resort Condominiums International, 07-cv-00437.
Nor did DeZao advise the surviving sibling to find his own lawyer, according to Smith v. DeZao, 13-cv-00072, filed Jan. 2 in Newark’s federal court.
The current suit, which alleges malpractice, breach of fiduciary duty and breach of the covenant of good faith and fair dealing, seeks compensatory and punitive damages, interest and costs.
Harold and Nancy Smith of Sinking Spring, Pa., retained DeZao two weeks after the June 2006 fatal event at Hotel y Villas Solaris in Cancun, Mexico, to represent the family for all claims.
According to court papers, the Smiths booked their vacation through a Parsippany timeshare company, Resorts Condominiums International (RCI), about eight months after Hurricane Wilma caused extensive destruction in the Cancun area. Though assured the Solaris was fully functional and all repairs were completed, the family arrived to find half the rooms not open, parts of the hotel under construction and only one of two elevator banks working. On each floor, the nonworking elevator’s doors were open but plywood panels shielded the doorway.
On the day of the accident, Shawn Smith, then 18, left their room on the fourth floor to go to the pool. A moment later, Andrew, 16, also headed for the pool. While waiting for the functioning elevator, Andrew leaned against the plywood panel on the one under repair. It gave way and he fell to the bottom of the shaft, where a foot-long metal rod impaled the right side of his abdomen.
Shawn learned of the accident almost immediately and ran from the pool to the lobby, where several people were leaning into the open shaft and talking to Andrew. Shawn tried to console Andrew, who was conscious and talking but in extreme pain and bleeding heavily, during the roughly 45 minutes it took for emergency personnel to arrive. Andrew was taken to a hospital but died in surgery, two hours later.
DeZao filed a complaint in federal court in Newark on behalf of Andrew’s estate and Harold and Nancy Smith, and named RCI, the hotel and Mitsubishi Electric of Mexico, which sold and serviced the elevator. The hotel was never served, and Mitsubishi Electric was dismissed for lack of jurisdiction.
In August 2010, DeZao submitted a settlement demand to RCI that included damages for emotional distress on behalf of Andrew’s parents and brother, but defense counsel pointed out that the claims were never separately alleged.
DeZao moved to file an amended complaint, with Shawn as an additional plaintiff and with counts on behalf of Shawn and his parents under Portee v. Jaffee, 84 N.J. 88 (1980), the seminal state Supreme Court case on bystander-trauma damages.
DeZao said in court papers that facts underlying the three family members’ claims were fully spelled out in interrogatories. He also said he was under the impression that RCI’s lawyer had chosen to postpone its discovery over the family’s emotional distress.
In December 2010, U.S. District Judge Esther Salas allowed DeZao to add Portee counts for Andrew’s mother and father but did not allow Shawn to be added as a plaintiff, citing passage of the two-year statute of limitations.
The parents replaced DeZao with John Baldante, of Levy, Baldante, Finney, Rubenstein, Cohen & Chizmar in Haddonfield, and settled the underlying case last July on confidential terms.
Baldante now represents Shawn in the malpractice suit, along with co-counsel Michael O’Neill of Purcell, Mulcahy, O’Neill & Hawkins in Bedminster.
Baldante says the Smiths claim they provided DeZao with the full details of Shawn’s presence at the scene and were under the impression DeZao represented all of the family’s interests. “As a lawyer, you don’t leave an 18-year-old out to dry,” he says.
DeZao did not return a call.