Pearson v. Mercadante

Defense Verdict

Date of Verdict: Jan. 5.

Court and Case No.: C.P. Montgomery County, No. 2015-14109.

Judge: Thomas P. Rogers.

Type of Action: Slip-and-fall, premises liability.

Injuries: Fractured ankle.

Plaintiffs Counsel: Albert J. Brooks Jr., Fodera & Long, Philadelphia.

Plaintiffs Experts: Matthew Craig, orthopedic surgery; Willow Grove; Stephen Wilcox, human factors, Philadelphia.

Defense Counsel: Eamon C. Merrigan, Goldberg, Miller & Rubin, Philadelphia.

Defense Experts: Evan Kovalsky, orthopedic surgery, Norristown; Daniel Honig, structural; Swarthmore.

Comment:

On June 2, 2014, plaintiff Ann Marie Pearson, in her mid-50s, was descending the exterior stairs of a condominium she had rented in Sea Isle City, New Jersey. The stairs had a handrail on Pearson's right side but not on her left. She was a couple of steps from the landing when she misjudged a step and fell off the stairs toward the left. She fell about 18 inches and landed on her left foot, fracturing her ankle.

Pearson sued condominium owner Joseph Mercadante. She alleged he was negligent in maintaining the stairs, because he failed to ensure there was a left-side rail. The lack of a rail constituted a dangerous condition.

Pearson's expert in human factors stated that building codes require such an exterior stairwell to be outfitted with dual-sided rails and that Mercadante's stairs would be safer if it had a left-side rail. The expert concluded that, had a rail been present on the left side of the stairs, Pearson would not have fallen, or at the very least, would have been able to regain her balance by using the rail.

Mercadante's counsel argued that Pearson's own actions caused the accident, because she admittedly was not using the right-side handrail as she descended. Even if a left-side rail had been present, Pearson most likely would still not have used it and would have fallen.

Mercadante's expert in structural engineering determined that the stairs were code-compliant. According to the expert, the structure met the minimum code requirements and in some aspects exceeded applicable standards.

Pearson was taken by her husband to an emergency room, where she was diagnosed with a trimalleolar fracture of her left ankle. The next day, she had open reduction and internal fixation surgery, with a plate, screws, and pins implanted.

After she was discharged, Pearson returned to her home, in Pennsylvania, where she remained non-weight-bearing in the ensuing weeks. In July, she had a revision surgery, in which some of the hardware was removed after it had loosened. From September to November, she treated with physical therapy, including exercises. Other than some follow-ups with her surgeon, no further treatment was administered, and she sought to recover a medical lien of $81,575.99.

Pearson's surgeon rated her prognosis as good and testified that she had reached maximum medical improvement; however, she will likely develop post-traumatic arthritis in her left ankle. Moreover, she has a mild but permanent loss of range of motion.

Pearson testified that her ongoing ankle limitations make it difficult to climb stairs, walk or stand for long periods, and perform household chores. She sought damages for past and future pain and suffering. Pearson's husband, who had taken on more household duties, sought damages for a claim for loss of consortium.

Mercadante's expert in orthopedic surgery, who examined Pearson, disputed that she would develop post-traumatic arthritis, since the soft-tissue areas in her ankle, as shown in in radiographic imaging, gave no indication of a potential onset.

The jury found that Mercadante was not liable.

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

—This report first appeared in VerdictSearch, a ALM publication.