Visitor falls from apartment balcony: Failure to maintain railing: Fractured elbows: Postverdict settlement

Law Reporter, Dec 2001

Visitor falls from apartment balcony: Failure to maintain railing Fractured elbows: Postverdict settlement.

McDermott v. Abley, Cal., Orange County Super. Ct., No. 00 CC 09406, Aug. 7, 2001.

McDermott, 29, was helping a friend move out of an apartment building. While he was tossing boxes over the side of a balcony railing, it gave way and McDermott fell to the ground. He suffered fractures of both elbows and was left with residual pain in both arms plus lost range of motion and scarring to one arm. His medical expenses totaled about $29,000.

McDermott had been a trucking equipment salesman, but his injury prevented him from keeping this job. He worked different odd jobs before being hired as a hotel telephone operator. His past and future lost earnings are estimated at between $190,000 and $600,000.

McDermott sued the owners of the building, alleging that they had negligently failed to maintain their property by allowing the railing on the balcony to rot.

Defendants claimed they had no notice of the hazard and that an earlier inspection had shown the railing was in adequate condition.

A jury awarded $1.2 million, reduced to $960,000 due to plaintiffs 20 percent comparative negligence. Plaintiff filed for judgment notwithstanding the verdict, challenging the finding that he was partially at fault. The parties then settled for $980,000.

Plaintiff's experts were Daniel A. Capen, orthopedic surgery, Downey, Cal.; Wayne H. Lancaster, economics, Fullerton, Cal.; and Stephen Wexler, accident reconstruction, Marina del Rey, Cal.

Plaintiff's Counsel

Cynthia Hafif, Claremont, Cal.

Herbert Hafif, Claremont, Cal.