Defense Verdict in Slip and Fall; Plaintiff’s Photos Prove Useful to the Defense


Attorney Gerard Donnelly successfully obtained a defense verdict in Worcester Superior Court in a case involving a slip and fall on snow and ice.  The plaintiff alleged that she had fallen on a patch of ice at the top of an exterior staircase while she was delivering Christmas cookies to a friend who lived at the defendant’s apartment complex.

The plaintiff claimed that she sustained an ankle fracture as a result of her fall.  The plaintiff developed cellulitis at the injury site and her necessary ORIF surgery was delayed.  Following surgery, the plaintiff experienced complications and delayed healing at the incision site.  The plaintiff’s medical bills totaled approximately $50,000.00.  Further, the plaintiff asserted a claim for lost wages in the amount of $2,700.00, claiming that she could no work at her part-time position as a community outreach  worker during her recovery.  The tenant whom the plaintiff was visiting at the time of the subject incident testified at her deposition that there was an ongoing problem with ice accumulation on the subject porch and that water dripping from the roof had contributed to the defective condition.  However, both the plaintiff and tenant also described the alleged defect as “black ice.”  Prior to trial, the plaintiff’s demand for settlement was in the amount $75,000.00.

During trial, plaintiff counsel submitted photographs of the subject apartment complex into evidence and attempted to argue that the gutters had been installed post-accident and that the lack of gutters had created the defect which caused plaintiff’s fall. Attorney Donnelly argued that evidence of any post-accident improvements was barred pursuant to the discretionary function exemption of the Massachusetts Torts Claims Act, M.G.L.c. 258 §10(b). Further, Attorney Donnelly argued that the plaintiff had failed to allege a lack of gutters in her presentment letter and/or in her complaint.  Lastly, Attorney Donnelly argued that plaintiff’s theory regarding a lack of gutters required testimony from an expert witness.  The judge barred the plaintiff from alleging causation with regard to the lack of gutters, but the plaintiff was permitted to submit the photographs into evidence and to state that gutters had been installed post-accident.  However, the photographs depicted an attractive, well-maintained apartment complex in good repair and without any obvious defects.

Attorney Donnelly also argued that the subject area was sanded and salted by the defendant’s maintenance personnel the day before the plaintiff’s accident. Written statements taken of maintenance personnel shortly after plaintiff’s fall helped to support defense counsel’s arguments.

After several hours of deliberation, the jury returned with a defense verdict in favor of the defendant landlord.

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