verdicts and settlements

Date of Verdict: March 19.

Court and Case No.: C.P. Delaware 12-009105.

Judge: James F. Proud.

Type of Action: Premises liability.

Injuries: Leg fracture.

Plaintiffs Counsel: John A. Lord, Silvers, Langsam & Weitzman, Philadelphia.

Defense Counsel: Hugh Gillespie, Snyder & Verbeke, Conshohocken, Pa., for Ridley Park Swim Club; Natasha L. Dorcus, Baginski Mezzanotte Hasson & Rubinate, Philadelphia, for Harper Family Trust.

Plaintiffs Expert: Brian O’Donel, facilities engineering, Lancaster, Pa.

Comment: According to the plaintiff’s arbitration memorandum, on June 24, 2010, Maryann C. Dunlap, 70, was walking to her car, which was parked in the lower parking lot of the Ridley Park Swim Club, when a tree fell on her. The tree was located on property about 10 feet from the parking space that is owned by the Harper Family Trust, who were also defendants in the case. Dunlap sustained leg fractures.

Dunlap sued the swim club and the Harper Family Trust, alleging that the tree was in an unsafe condition, and that the club failed to warn about the alleged danger.

In her arbitration memo, Dunlap argued that the tree had been dead for decades and had been dropping branches for years.

Dunlap’s facilities engineering expert opined that a healthy tree would not have been affected by wind conditions prevailing at the time the tree fell, that the tree was dangerous, that a reasonable inspection would have shown the dangerous condition and that failing to inspect the tree was below the standard of care required of property owners.

Dunlap, in her trial memorandum, contended that the swim club had a duty of care under the “special relationship” outlined in the Restatement (Second) of Torts. Dunlap claimed that she was a business invitee and that the club knew the tree was dangerous, as it had admitted to partially inspecting trees on its premises previously and that some branches had fallen onto its property in the past. She further contended, in her trial memo, that the swim club should have hired an arborist, or warned invitees about the dangerous condition.

According to the arbitration opinion, Harper contended that the dead tree was at the center of lush foliage and would not have been detected by a layperson, and photographs of the scene suggest the dead tree could not be clearly seen by a layperson.

Harper also, in its answer, denied Dunlap’s allegations and contended that Dunlap was comparatively negligent.

In its answer filed March 10, the swim club denied Dunlap’s allegations and said it had no prior notice of knowledge of the dangerous condition. The club also contended that Dunlap was comparatively negligent for failing to observe the conditions.

According to Dunlap’s arbitration memo, it took eight men to carry the tree off her. She was taken to Taylor Hospital from the scene. She sustained cuts, bruises, abrasions, a displaced fracture of the right hip at the femoral head and a fracture of the right knee at the tibial plateau. Dunlap remained in the hospital until Oct. 9, 2010, and was then required to live with her daughter before she could return home.

Dunlap contended in her arbitration memo that she requires a walker to ambulate, that she is dependent on others for her daily activities and that her Medicare lien totaled $43,000.

Dunlap and the Harper Family Trust agreed to arbitrate the case. The arbitration was before Joseph M. Fioravanti, who awarded Dunlap $350,000.

Dunlap’s case went to trial with the swim club. The jury found that the club was negligent, and that the negligence was a cause of the injuries. The jury awarded Dunlap $750,000.

“It was a significant injury and I think the jury recognized that and recognized that the swim club wasn’t owning up to the responsibility,” said Dean Weitzman of Silvers, Langsam & Weitzman, which is the firm that represented Dunlap. “We agree that you can’t go next door to cut down a tree that doesn’t belong to you, but they have a duty to warn their guests and they should not have used that area as a parking lot.”

— Max Mitchell, of the Law Weekly •