Isaac v. Ross

$900,000 Settlement

Date of Verdict: Dec. 20, 2017.

Court and Case No.: C.P. Philadelphia No. 160403015.

Judge: David E. Brenner

Type of Action: Premises Liablity

Injuries: Brain damage

Plaintiffs Counsel: Leonard K. Hill and James J. Roman, Hill & Associates, Philadelphia.

Plaintiffs Experts: Nirav Shah, neurosurgery; Princeton, New Jersey; Richard Balgowan, engineering; Mount Laurel, New Jersey; Kimberly Kushner, life care planning; Bala Cynwyd.

Defense Counsel: Frederick T. Lachat Jr., Margolis Edelstein, Philadelphia; Stephen J. Magley, O'Malley and Magley, Pittsburgh; Robert K. O'Grady, City of Philadelphia Law Department, Philadelphia.

Defense Experts: Lee Harris, neurology; Abington; Serge Borichevsky, engineering, Doylestown; Valerie Parisi, life care planning; Doylestown.

Comment:

On May 3, 2015, plaintiff Paulette Isaac, 57, was walking on Commissioner Street, in North Philadelphia, when she tripped and fell. She asserted that she had been walking on the sidewalk at 3429 W. Commissioner St. when her foot caught on a patch of temporary asphalt, causing her to fall and land face-first. She claimed she suffered brain damage.

Isaac sued property owner William Ross III. She also sued Philadelphia Gas Works, Anthony Verrecchia & Son Inc., Danella Construction Corp., and the city of Philadelphia. She alleged the defendants were negligent in repairing and maintaining the sidewalk, creating a dangerous condition.

Philadelphia Gas Works had recently subcontracted with Danella Construction Corp. to install a gas main and with Anthony Verrecchia & Son to perform concrete work and sidewalk restoration after completion.

Verrecchia & Son had agreed to indemnify Philadelphia Gas Works in any litigation.

Ross was dismissed by summary judgment.

Isaac's expert in engineering faulted the defendants for using a temporary repair to the sidewalk, specifically cold-patch asphalt, because it created a tripping hazard. Since the defendants had not warned pedestrians of the sidewalk's defective condition, such as by warning signs or barriers, it had the duty to properly install the cement and restore the sidewalk to its usual condition.

An expert in engineering for Philadelphia Gas Works, Anthony Verrecchia & Son, and Danella Construction maintained that the use of cold-patch asphalt was appropriate. The expert faulted Isaac for failing to observe the patch, since it was an open and obvious condition, and in any case she knew of the sidewalk's patch, since she lived in the neighborhood. The expert cited street surveillance footage to question whether Isaac even fell at the area of the sidewalk she alleged.

Counsel for Danella Construction asserted that the company did not perform any work on the sidewalk at any time, nor was it responsible for restoration of the sidewalk. The company stated that it had completed its work nearly eight months before the alleged accident. Further, it did not use cold patch for street restoration, a policy that was established in testimony by witnesses for Danella Construction and Philadelphia Gas Works.

Danella Construction's counsel argued that in February 2015, Philadelphia Gas Works had assigned permanent restoration of the sidewalk to Anthony Verrecchia & Sons, but the company did not restore the sidewalk until May 18, 2015, or nearly three months later.

The city maintained that it could not be found liable, because it had no connection with the construction project.

Isaac was taken by her husband to an emergency room, where she underwent scans and was diagnosed with a subdural hematoma. She was admitted and monitored for the next two days. During that time, she was taken off her anticoagulant medication in the hope that it would help with recovery of the hematoma.

For the next two months, Isaac was monitored by her primary care physician and experienced severe headaches. With her condition worsening, Isaac had another radiographic study, which showed the hematoma had enlarged.

In July, she had a craniotomy, in which two evacuation holes were created for the right-sided frontoparietal region of her brain, and two plates were implanted.

Isaac was later discharged and was eventually put on headache medication; she also saw a neuropsychologist on one occasion for complaints of cognitive impairment, including memory loss and difficulty concentrating. No further treatment was administered, and she sought to recover a medical lien of approximately $52,000.

Isaac's expert in neurosurgery causally related her injuries and treatment to the accident. The physician noted that her ongoing symptoms were related to the fall, and were not attributable to a stroke that she had suffered in 2007. According to the expert, Isaac required ongoing medication and scans, and neuropsychological treatment. Isaac sought to recover approximately $800,000 in future medical costs.

Isaac claimed that she continues to experience severe headaches, forgetfulness, and difficulty concentrating. She sought damages for past and future pain and suffering.

An expert in neurology for Philadelphia Gas Works, Anthony Verrecchia & Sons, and Danella Construction, who examined Isaac, determined that her ongoing headaches and cognitive deficits were solely related to her 2007 stroke. The expert cited medical records which noted that Isaac had suffered headaches and cognitive impairments from the incident.

The defendants' expert in life-care planning determined that Isaac did not require future treatment; however, if a jury believed that she did, then it should only award about $30,000 for headache treatment.

The parties settled for $900,000, during a mediated settlement, prior to trial. Discovery had been completed, and the case had been scheduled for the January 2018 trial pool.

Anthony Verrecchia & Sons agreed to pay $810,000, and Danella Construction agreed to pay $90,000.

Anthony Verrecchia & Sons had a primary insurance policy of $1 million and an excess policy of $4 million.

Danella Construction had a $500,000 insurance policy.

The city of Philadelphia was not part of the settlement.

This report is based on information that was provided by counsel for the plaintiff and for Danella Construciton. Counsel for Philadelphia Gas Works, Anthony Verrecchia & Son Inc., and city of Philadelphia did not respond to calls for comment. William Ross III was not asked to contribute.

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