Davis v. Philadelphia

$142,500 Settlement

Date of Verdict: 

July 20.

Court and Case No.: 

C.P. Philadelphia No. 160600430.

Type of Action: 

Premises liability, slip-and-fall.

Injuries: 

Leg fracture.

Plaintiffs Counsel:

Robert A. Gelinas, Gelinas Law Offices, Philadelphia.

Plaintiffs Expert:

Paul Sedacca, disability evaluation, Philadelphia.

Defense Counsel:  

Joshua M. Feissner, City of Philadelphia Law Department; Philadelphia;  Robert S. Pfersich Jr., The Grossman Law Firm, Freehold, New Jersey.

Defense Expert:  

Joseph Bernstein, orthopedic surgery; Philadelphia.

Comment:

On Dec. 7, 2015, in the evening, plaintiff Robert Davis, 54, was walking toward Neets bar, at 5127 Market St., in West Philadelphia. He was intending to go into the bar when an acquaintance approached and started talking to him. As Davis turned, his left foot stepped into a depression in the sidewalk that was nearly two inches deep. His foot became stuck but his body continued to turn and Davis heard a snap in his ankle; he fell to the ground. He suffered a fractured ankle.

Davis sued bar- and property-owner Juanita Viner, her husband, Alfred Viner (who was the bar manager), and the City of Philadelphia, alleging they were negligent in allowing a dangerous condition to exist.

Davis was a regular at Neets, and he typically went into the bar through the front entrance; however, on the day of the accident, he decided to enter through the side entrance, because there was a crowd blocking the front. He asserted that, since he had never entered the bar through the side entrance, he was unaware of the defective condition of the sidewalk. Moreover, it was dark and there was insufficient lighting in the area.

Davis’ counsel contended that the Viners and the city had known about the sidewalk’s hazardous condition for years. A bar manager and the Viners themselves admitted that they had known about the deteriorated sidewalk. The Viners said that city police officers would go into the bar “once or twice a month” to insect the bar owner’s licenses in the premises. Davis’ counsel contended that the officers would have had to walk over the sidewalk to enter the bar, and consequently, the city had constructive notice of the sidewalk’s defective condition. Additionally, there was a Department of Licenses and Inspections office a few blocks from where the accident occurred.

The city brought a cross-claim against the Viners, faulting them for Davis’ accident. The city maintained that the Viners knew about the sidewalk, and under a Philadelphia ordinance, the property owners were primarily liable and required to keep the abutting sidewalk free of any defects or dangerous conditions.

The Viners asserted that serious health issues of the bar owner prevented her from repairing the sidewalk, but she would have testified that, if the city had cited her to repair the sidewalk, she would have done so. The Viners and the city maintained that Davis was contributorily negligent for the accident, because he was a frequent patron who was familiar with the property.

Davis was taken by ambulance to an emergency room, where he was diagnosed with a left bimalleolar fracture. Three days later, he underwent open reduction and internal fixation surgery, in which a plate and screws were implanted.

Davis remained non-weight-bearing in the ensuing weeks. He eventually had a course of physical therapy, which he treated for a few months, and followed up with his surgeon on multiple occasions. No further treatment was rendered, and he sought to recover a stipulated Department of Public Welfare medical lien of $22,244.

Davis’ expert in disability evaluations determined that he had suffered a permanent loss of a bodily function from the accident, a point Davis was required to prove under the Political Subdivision Tort Claims Act, because he had sued a government entity. The expert opined that, in an ankle fracture, the bones pulled on the contiguous tendons and ligaments which caused them to stretch and to function abnormally. The expert also noted that Davis had a permanent surgical scar which caused discomfort and sensitivity.

Davis said that standing for long periods aggravates his ankle, and going up and down stairs causes soreness. He also complained about his scarring. He sought damages for past and future pain and suffering.

The city’s expert in orthopedic surgery, who examined Davis, acknowledged that he fractured his ankle and his treatment was reasonable.

The parties settled for $142,500, during jury selection. The city agreed to pay $137,500, and the Viners agreed to pay $5,000. As part of the settlement, a judgment was entered in favor of the city against the Viners for $137,500.

The Viners were uninsured.

 

This report is based on information that was provided by plaintiffs counsel. Defense counsel did not respond to calls for comment.

—This report first appeared in VerdictSearch, an ALM publication