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I suppose at first blush a property owner’s insurance carrier might have felt pretty confident in taking a "no pay" position in this interesting case, particularly when a Brooklyn jury had returned a defense verdict on liability for a trip and fall over the very same defect several years before. Not so fast……

The plaintiff, an 85 year old veteran of World War II, was exiting the defendant’s convenience store after purchasing a cup of coffee. After opening the door, he took 2 steps and lost his balance when he encountered a single step that was not marked at the nosing with yellow paint or similar warning. The riser of the step was also much narrower on the left than at the right. No handrail was present. The plaintiff sustained a hip fracture requiring surgery.

The defendant had previously been sued by a lady who fell negotiating this very same step several years earlier, which resulted in a defense verdict on liability. In our case, the defendant refused to pay on the strength of the prior DV. At the time of trial before the Hon. Leon Ruchelsman in Brooklyn this June, we argued that while the prior accident should be made known to the jury to prove notice of a dangerous and defective condition, the fact that a defense verdict was reached in the prior case should not. The judge agreed.

The result was a finding of 100% negligence against the property owner, with a total damage award of $235,000. Judge Ruchelsman has just denied the defendant’s post trial motions in all respects.

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