Babbish v. Pixie Paradise Child Care Center

$800,000 Verdict

Date of Verdict: Oct. 25.

Court and Case No.:  C.P. Luzerne No. 2016508.

Judge: Richard M. Hughes III.

Type of Action: Premises liability, slip-and-fall.

Injuries: Ankle, back injuries.

Plaintiffs Counsel: Troy Crichton, Gibbons Legal P.C., Philadelphia.

Plaintiffs Expert: Peter A. Feinstein, orthopedic surgery; Wilkes-Barre.

Defense Counsel: Robert T. Panowicz and Joseph C. Thomas, Law Offices of Robert T. Panowicz & Associates, Wilkes-Barre.

Defense Experts: Gene Z. Salkind, neurology, Huntingdon Valley; Michael L. Brooks, neuroradiology, Thornton.

Comment:

On Feb. 4, 2014, plaintiff Joann Babbish, 66, a paraprofessional educator, slipped and fell on snow and ice outside Pixie Paradise Child Care Center, in West Hazelton. She fractured her ankle and claimed back injuries.

Babbish sued the daycare and its owner, Deborah Rizzo, alleging that they were negligent in failing to properly remediate the property. According to Babbish, prior to the accident, she and her husband parked their vehicle curbside to the daycare's entrance, which was only a few feet away. Babbish exited the vehicle to pick up their grandson. As she left the daycare while carrying her grandson, Babbish slipped and fell on snow and ice. Babbish and her husband testified that there was a partially shoveled pathway to the daycare's entrance, but in order to access the pathway, a person had to step over an area on the sidewalk that was packed with accumulated snow. This is where Babbish had fallen. The snow had accumulated as a result of the daycare setting aside the shoveled snow. Babbish's counsel maintained that the daycare created an unintended obstacle by placing the shoveled snow curbside, where patrons were known to park, and by doing so it interfered with their entering and exiting the building.

The defense argued that the daycare had properly removed snow and ice on its premises, and it presented photographs to support the claim. The defense questioned whether Babbish had fallen as she alleged. The daycare cited a note in her emergency-room records that stated, Babbish “fell at home immediately prior to arrival.”

Later that evening, Babbish believing that she suffered a sprained right ankle, due to pain and swelling, presented to an emergency room. She was diagnosed with a fracture of the right distal fibula and placed in a cast. For the next 10 weeks, Babbish remained in the cast and remained non-weight-bearing.

In April, by the time Babbish's cast was removed, she allegedly began experiencing low-back pain. She presented to an orthopedic surgeon, who, via an MRI, diagnosed her with an exacerbation of degenerative disc disease in the lumbar spine. She was put on a course of physical therapy, which she treated through August. Her treatment included massage and exercise. Babbish was referred to a pain-management specialist, who administered two epidural injections to her back. No further injections were administered because they caused her to experience vomiting. She then treated with a course of chiropractic care for a couple of months. Her treatment consisted of massage and spinal manipulation.

In December 2014, Babbish and her surgeon determined that she required surgery; however, in the following month, she suffered a heart attack and the surgery was postponed. It was not until April 2016 that Babbish underwent a laminectomy and fusion of intervertebral discs L3-4 and L4-5. No further treatment was rendered.

Babbish's expert in orthopedic surgery causally related her injuries and treatment to the accident. According to the expert, Babbish is vulnerable for future adjacent segment disease at the intervertebral discs surrounding the fused L3-4 and L4-5 discs. As a result, she potentially requires future surgery, estimated at $100,000; yearly pain management, estimated at $5,000; and annual diagnostic studies, estimated at $5,000.

Babbish testified that she experiences constant back pain, which limits her activities of daily living. This includes getting up from chairs, bending, stooping, cooking, cleaning and interacting with her grandchildren. Her husband testified about Babbish's limitations. She sought damages for past and future pain and suffering.

The defense's expert in neurology, who examined Babbish, disputed that she suffered any back injuries related to the fall, and that any injuries she would have suffered would have been soft tissue in nature and would have resolved within weeks of treatment.

The defense's expert in neuroradiology testified that there were no changes in Babbish's pre- and post-accident radiographic studies, and that any complaints she suffered were solely attributed to her longstanding pre-existing condition.

The jury found Babbish 20 percent liable and Pixie Paradise 80 percent liable. Babbish was determined to receive $800,000, which will be accordingly reduced to $640,000.

This report is based on information that was provided by plaintiffs and defense counsel.

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