Attractive Nuisance – Child Falls From Sculpture In Park – Quadriplegia -Second Trial

VERDICT: $33,349,110, reduced to $30,014,199 for 10% comparative negligence of Pltf., and further reduced as excessive to $11,532,440.

Breakdown: $3,000,000 for past pain and suffering, disability, and hospitalization; $12,000,000, reduced to $3,000,000 for future pain and suffering; $523,110 for past medical and hospital expenses; $1,260,000 for future medical expenses; $571,000 for future cost of medical equipment; $ 98,000 for future maintenance of equipment; $856,000 for future lost earnings and fringe benefits; $15,000,000, reduced to $5,212,830 for future nursing/attendant expenses. Liability: Deft. 90%; Pltf. 10%. This is the second trial of this action. See, NYJVR Volume VI, Issue 7, Case 11. A defense verdict was rendered at the first trial in December 1987 and on Pltf.’s motion, the Court set aside the verdict as to the City’s negligence and ordered a new trial on that issue. The City appealed and Pltfs. cross-appealed. The Appellate Division affirmed and ordered a new trial. Jon Doe v. City of New York, 148 A.D.2d 1018, 540 N.Y.S.2d 120 ( App. Div., First Dept. 1979).
VII/20-1 Attractive Nuisance – Child Falls From Sculpture In Park – Quadriplegia -Second Trial

Jon Doe, inf. by m/n/g Jane Doe and Jane Doe, indiv. v. City of New York 3699/88 2-week trial Verdict 6/7/89 Judge Ira Gammerman, New York Supreme

Pltf. Atty: Harvey Weitz of Schneider, Kleinick & Weitz, Manhattan and Thomas L. Bondy of Zuller & Bondy, Manhattan

Deft. Atty: D. Daniel Engstrand, Jr., Asst. Corp. Counsel

On 8/19/85 at approximately 7 PM, Pltf., 7 years old at the time, fell from the “Shower Tower” located at Deft. City’s Coleman Square Park playground at Cherry and Market Sts. The Shower Tower, a 15- foot structure, was installed in 1974 at Deft.’s playground and was designed as a climbing device, sculpture, and shower and water fountain. Pltf. fell from a ledge at the 8-foot, 3-inch level.

The structure was made of concrete and metal with rungs for climbing inside a cut-out jack-o-lantern face. Evidence at trial indicated that children would use the ledges created by the jack-o-lantern’s mouth, nose, and eyes as footholds to climb to the top of the structure. There was testimony from City employees that approximately once a week the tower would be painted to cover the graffiti. The City, however, claimed no notice of children climbing to the top of the structure. It contended that the design allowed for children to climb only halfway up to the top. Evidence at trial indicated that the eyes of the jack-o-lantern were filled with concrete after the accident.

Pltf. argued that the Shower Tower was purely and simply a climbing device and that it was much too high to be a safe design. Pltf. also claimed that the device was surrounded by a poured rubberized surface which was one inch thick, but had deteriorated and flattened into a hard surface unsuitable for safe “falls.” Pltf.’s theory was supported by the testimony of a playground expert who testified that the Shower Tower did not meet industry standards and practices. Pltf. further contended that the City should have removed the rungs and/or filled the face holes or removed the structure. Pltf. also contended that the surface at the base of the structure should have been 8-12 inches of sand.

Pltf. sustained a fractured cervical vertebra at C-3 and was rendered a quadriplegic. He now lives at the Goldwater Memorial Hospital on Roosevelt Island, although he is able to attend a regular class at an elementary school. He requires 24-hour nursing care. He is unable to breathe without the use of a respirator and has no control of any muscles below his neck. Pltf.’s round-the-clock nursing care also includes occasional catheterization, suctioning, and maintenance of his body temperature. His life expectancy is 44 years. Pltf.’s rehabilitation expert, economist, and nurse testified to the future care that Pltf. will need. Deft.’s biomechanical engineer testified that the axial node fracture that Pltf. sustained in the fall could have occurred at any height above three inches, since his injuries resulted from the angle at which Pltf.’s head and torso struck the surface. Demonstrative evidence: Pltf. introduced a full-sized styrofoam model of the Shower Tower (the courtroom had a 25-foot high ceiling). Pltf. Experts: Dr. Alan Caskey, playground expert, Glenview, Illinois; Dr. Kristjan Ragnarsson, rehabilitation expert, Mt. Sinai Hospital; Janet Kennedy, R.N., Westbury, regarding future nursing costs; Dr. Dean Morse, economist, Columbia University. Deft. Experts: James Otis,. biomechanical engineer, Manhattan; Dr. Augusta Alba, rehabilitation expert, Goldwater Memorial Hospital; Dr. Norman Leeds, radiologist, Manhattan.


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