EP02 S02: $1 Million Trial Story – Slip and Fall in a Brooklyn Public School

Discover our new podcast episode, this time I talk about a Slip and Fall case in Brooklyn, a Million Dollars Story!

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Welcome to Trial Stories an informative discussion of civil justice with a focus on the human story. I’m your host. Arkady Frekhtman a New York City trial lawyer passionate about helping serious injury victims and their families.

Hi, everybody, and welcome to Trial Stories.

Today, we wanted to talk about a particular case that we handled this year in 2020. And it involved a slip and fall inside a public school, an elementary school in Brooklyn, specifically in Bensonhurst, where we have our office.

It was a mother who was picking up her child from school, and as she was picking up her child, she was caused to slip and fall. It happened around 3:00 PM, when all the kids were being dismissed from school. And it wasn’t the front entrance of the school, as you could see here in the photo, but it was a side entrance.

The side entrance went to the school yard, where they had basketball courts and a playground. And so the procedure was that when it rained, the teachers would line up with their students and dismiss the students one by one to the parents. And the dismissal started about 2:50 PM.

So what happened here was, she went to pick up her daughter as well as some other kids. So she picked up one child in the cafeteria and another child in the front of the school and then the last child she had to pick up was her daughter, at the side entrance. And the staircase was divided into two parts by a red handrail down the middle. And as she was walking on the left side on the second step, she was caused to slip and she fell onto her back. And at first, everyone said, “Are you okay? Are you okay?” And she said, “Yeah, yeah, I’ll be fine.” She got up, she was embarrassed and she went home. She lived two blocks away. But unfortunately, the pain just didn’t go away. It was a serious back pain and she needed to see a doctor.

She needed to get epidural shots, she got diagnosed with a herniation and she ended up needing a full blown back surgery known as a fusion, to her lumbar spine. So that was just the unfortunate damage and the harm as a result of this incident. And so, this happened a while back, this happened in 2011. And we filed a lawsuit and we were pushing the case through the court system in Brooklyn. It started off in the Supreme Court, which is the court of original jurisdiction where you would file a serious injury case.

There’s no limit to the amount that a jury could allow for in Supreme Court. But for whatever reason, I think it was a scheduling issue, the case got moved pursuant to the civil practice law and rules, section 325(d), it can get transferred to the civil court. And so it got transferred and all along, this case was at no pay because it was against the City of New York.

It was against the New York City Board of Education, now known as the Department of Education, which is a agency of the city. And they said, “Absolutely not. You have no proof. Of course the steps are going to be a little bit wet because it was a rainy day and you have no proof that we did anything wrong. So, no pay, we’re not going to pay anything.” And so we took the case to trial. We spent three weeks picking a jury, and then we started the trial. I believe the trial started right after the new year. It started sometime in January of this year, of 2020. And it finished in February of 2020. So it took a while. It took about a month to try the case.

And so, jury selection went fairly well, from my recollection, we spoke to a panel of about 20 people. And the way they do it in New York is when you’re selecting a jury, you don’t have a judge in the room. So it’s just us, representing the plaintiff, the lawyer representing the defendant, in this case, the city of New York, and then the jurors. So if, for example, one of the lawyers asks a question and the other lawyer doesn’t like the question and wants to object. They can’t really object, because there’s no judge in the room. So what they have to do is they have to say, “Let’s step outside.”

So we go outside the room and now you’re in this hallway. And then you try to work it out amongst yourselves to rephrase the question with the language that both sides could agree upon, or else you have to go see the judge. Now, the judge isn’t there, not even on the same floor. You’re picking the jury on the third floor and you would have to go up to the eighth or ninth floor looking for the judge. And the judge could be in his or her courtroom doing a motion, doing another trial, or they could be in their chambers. So, it could just take like an hour just to find the judge and see the judge.

And most of the time, a judge will just say, “You know what, go back and just work it out among yourselves. I don’t want to be involved in this.” But meanwhile, while you’re going and looking for the judge, these poor jurors, potential jurors, are just sitting there in a room by themselves. And these are really not very nice rooms. There’s no windows usually, there’s one fan that makes a lot of noise, an old fan from like the 1970s. There’s plastic chairs, just cement walls, very, very, almost like a prison-type environment. So you try to keep it as lighthearted, you try to keep it as interesting as you can for these jurors, because already they’re obviously coming there because they have to, they were summoned, but you don’t want to keep them waiting.

So we try to minimize that. Although we had some conflict and it took us three weeks to pick a jury. So it did take some time. And we have our preemptory challenges, which each side has three. And you could use it for any reason if you just don’t like a juror. And then you have your challenges for cause, if you can show that the juror can’t be fair based on their biases or their belief system. So, yeah, we had both, we had challenges for cause as well as preemptories, both sides did.

But getting to the trial. So we opened up and an opening statement, I gave the opening statement and I discussed what the safety rules were and what the city of New York should have done that they didn’t do. And we have that here.

This is actually some slides from the closing argument. But the safety rules basically were things like did they put down mats? Did they put down those yellow caution signs? Did they have an umbrella bin? Did they look and inspect to make sure it was safe before dismissing hundreds of kids from the school? I believe it was 800 kids went to that school from kindergarten all the way through the sixth grade.

Did they have a schedule of when they should mop or when they should inspect? So it was things like that. Did they use a checklist? Did they use these nonstick strips, peel and stick strips? Did they have a spray? There’s a certain spray that you could spray on the steps, so the steps wouldn’t be slippery. Did they follow the industry standards?

And all the answers to these questions were basically no. All the answers were no. We went through them one by one and on the PowerPoint, it actually, the way it was, was that it had, yes, it had no. And then the X would appear a little bit later. So, I thought it was powerful. We didn’t use this PowerPoint in opening.

The judge wouldn’t allow it. So what we actually did in opening was we just took a white piece of butcher paper and I would write it down and I would draw with a marker a little bit like of a mat, and draw a yellow sign, and draw a mop, and draw eyes to look and then just go through it. “Did they do this? Did they do this? Did they do this?” And then the evidence will show, we will show you how, throughout this trial, that they didn’t.

And so getting to the witnesses. So one of the witnesses that was called was a teacher and she was a witness to the accident. She watched the plaintiff fall. And she basically, the important thing that she said was that she saw water puddles before in that area. But she didn’t remember seeing mats. So, that was about a period of six months before the fall. So she did see the water puddles, but she did not see the mats. And so we used that as proof that the city of New York and the school district was negligent.

And then we talked to the custodian, he was called as a witness. We actually, I believe we called him on our case as an adverse witness and we cross-examined him. And he said that there was… If you went through all his staff, he had like four or five staff members, but when you broke it down, one guy was only there in the mornings. The other guy had a day off. The third guy was only there after 7:00 PM. So even though he had all this staff, when you broke it all down, there was only one guy who was actually there cleaning at 3:00 PM, when the dismissal happened of all the students and teachers and parents coming in and siblings, brothers, sisters, people going in and out of those doors. There was only one guy.

And there’s an 80,000 square foot school, five stories, six different entrances. And the custodian admitted there was no way to know what the schedule was that day, because they had nothing in writing. They would only inspect as necessary. But what does that mean, as necessary? It was very vague. And so that was a big point that we made. And he admitted that he had to go by memory and it was already 2020. And this was a 2011 incident, it happened nine years ago. So how could he possibly recall what happened?

And we made the point with him during cross-examination that he can choose to put it in writing. It was so easy to have a checklist, but he chose not to. And then he went through what this single isolated employee staff member, who was responsible for cleaning, was supposed to do. So, he was on cafeteria duty. And then, around lunchtime, when the kids took a break, he was supposed to throw the garbage out. And otherwise there was really no schedule. And the custodian could not tell us when either he or this sole employee, this staff member, would patrol. And there was no specified number of times that he was supposed to patrol.

And they had a manual. And the manual said that mats must be placed during inclement weather, including rain. And it was a manual not just for this school, but for all schools across New York City. And they also had something known as the CBA, the Collective Bargaining Agreement, which is an agreement that all the workers for the department of education and the school system and the city signed off on. So, it was an agreement about their wages, about their vacation time, about their… Just everything with regard to their work.

And the agreement said that mats shall be placed during inclement weather. And it was from, I think, 1994. So it’s been in existence for many, many years. And the manual for citywide schools was in existence, I think, since 1977. It was like 45 years. It was older than our client. So, we made a big point to say that they’re violating their own policies and their own agreements.

And the other thing that the custodian said was he admitted that wetness on the stairs, and this is a quote from him. He said, “it’s absolutely a dangerous condition.” And that was a point that we harped on because if the defendant is admitting it’s a dangerous condition, then obviously it could be dangerous. And the other thing that’s important to note is that we didn’t really, we weren’t able to get, and this happens in a lot of cases, we weren’t able to get too much discovery from the city of New York, because they kind of just said, “You know what? We object. We don’t have anything. And even if we did have anything, you don’t really need it to prove your case,” and mumbo jumbo.

But what we needed was we needed something meaningful. We needed something substantive that we could actually use, real discovery, not just objections. So we didn’t get much from them. But what we were able to do is we were able to use FOIL, which is the Freedom of Information Law. You can just send a letter or even do it online. You wait a few weeks, and then you receive discovery. So what we got from the FOIL was, we actually got a copy of those manuals that we just talked about. We got that Collective Bargaining Agreement. We were also able to get prior incidents of falls on this staircase.

And we saw that there were, I think, 43 incidents going back 10 years before this fall, there were 43 other falls. Now the incidents didn’t specify which staircase. And like we talked about, there are six different entrances, five floors. So it could’ve been another staircase. But, we still sought to use that, especially in cross-examining this custodian, to show that there were so many prior incidents, a student fell on the stairs, a teacher fell on the stairs. So it just goes to show how using outside sources, whether it’s a Google search, whether it’s an investigator that you hire, whether it’s FOIL, is very powerful in these kinds of cases.

And with respect to the custodian, he pretty much had to admit that, ideally, these employees, these other custodians and people who mop, janitors, they should report back to him, but they didn’t. And actually, in the deposition, when we asked them, “Well, do they report back to you?” His answer was, “I monitor them. They don’t monitor me.” We really, again, like used that to highlight the type of system it was that he was saying that, “I’m a big boss, nobody monitors me.” And there’s no way of knowing if the staff member mopped or not.

But we explained that reporting back is very important because that’s the only way that the head custodian would know what’s happening in his own building that he’s responsible for. If one janitor says, “Hey, we have a problem. I just mopped at 11:00 and now it’s 12:30 and I’m seeing the same problem at this particular entrance, entrance two.” Then he could assign more staff to that. But if he doesn’t know what’s happening, how could he manage a large building like this, 80,000 square feet? It’s bigger than a football stadium. So we harped on that.

And then at the end of the custodian’s testimony, we pointed out all the I don’t knows. So he didn’t know the condition of the stairs. He didn’t know where he was at the time of the accident. He didn’t know the last time he or anyone patrolled. He didn’t remember or know whether he told anyone to inspect. He didn’t know what the one cleaner, the one janitor who was on duty, was actually doing at or shortly before the accident. And he didn’t know where the yellow caution signs were out.

He actually learned about the incident. I believe it was three to four weeks after it happened. So we harped on that and used that to show, “Well, how can you just find out about an incident three to four weeks after it happens when your own office is right next to it?” It was right next to the place where it happened. “How can you find out three to four weeks later? That’s kind of crazy.” And so we use that to show that help was just two feet away. The custodian’s own office was right here on the right. That was his office. Just a few feet away. But yet he didn’t find out for three to four weeks later. It’s just the width of a wall.

So that was a powerful point that we made that he’s sitting in this office behind the desk, something’s happening just a width of a wall away on this staircase on the left. And he doesn’t even know about it. So the other thing we used was this analogy of burying your head in the sand. Like if you have rules, rules are there to solve a problem. But then if you don’t follow your own rules, it’s kind of like an ostrich burying their head in the sand, and we had a photo of somebody burying their head. So, that was another point that we made.

But in general, I would say that the points that we were making, we were basically talking about ideals versus reality. Some things are an ideal and some things are a reality. And so, we tried to talk about the difference between an ideal and a reality. So, we spent a lot of time on that. The ideal of what should happen versus the reality of what did happen.

So then moving along, we deposed the non-party, it was another parent, and she wasn’t able to come to trial. So we just read her deposition. And she basically, the only thing she said was that she was picking up her child at 2:00 PM the same day. And she saw a puddle. And then also it’s a recurrent condition, meaning that whenever it rained, she would tend to see puddles there over the last five years before this incident. And she did not see mats.

And then we called an expert, it was an engineer, and he talked about the coefficient of friction. So, for example, that’s the way the sole of your shoe interacts with the surface. So, zero would be ice, because ice is very slippery. And a coefficient of friction of one would be something like concrete, very rough, where there’s a lot of friction and you would not slip. So he actually talked about, and this is a magical phrase that you have to use in a lot of these cases with engineers, experts, it’s used often in medical malpractice cases, too. He talked about the reasonable degree of certainty.

And in medical cases, it’s the reasonable degree of medical certainty. Here, because it’s engineering, it was reasonable degree of engineering certainty. And he said to a reasonable degree of engineering certainty, the cause of this accident was, number one, because the stairway treads were painted. They painted these treads year after year. And so it was one layer of paint above another layer of paint above another layer of paint since the 1970s, without ever checking it and doing it properly. So paint over paint becomes very slippery.

And then, the other thing he talked about was, he said that there was a puddle of water on tread number two. And that was a cause with a reasonable degree of engineering certainty. And finally, the low coefficient of friction, the fact that it was very slippery, because you had water on top of paint and the slipperiness, that was the cause. And he said it was foreseeable because the school knew it rains. It knew this was a high trafficked area. So this was foreseeable. You could foresee or know that something like this might happen, and you should have taken precautions.

And then he talked about what you can do. And he said, “Well, you can put down strips.” These little strips that you see here on the left, they just get taped down or glued down. And they provide that sandpaper-like feel to anti-slip. And then you can also spray an anti-slip coating. I think it’s like $5 to buy that on Amazon. We actually brought a bottle of that and we showed it to the jurors.

And so, those are the things you can do. And then he talked about the procedure and he said, “Well, the procedure, what it’s really important about the procedure or the system is you have to make sure that the employees, the staff, the janitors are actually doing it. You have to have record keeping because that ensures that you have a system that’s working.” And he found that they were understaffed, having just one person. And also he said that it’s not a big deal, this record keeping, it’s not like we’re asking you to write a big book or anything. It’s just that it takes a second. You have pre-printed check-boxes, checklists and you’re just checking. It was inspected, check, that’s all it is.

But he also talked about the American National Safety Institute, ANSI, and the American Society of Testing Materials, ASTM, and how those standards were violated by what happened in this case.

And so, then we talked about the defense. And the defense basically was standard defenses that you hear in most slip and fall cases that, the plaintiff was at fault. She should’ve seen what she was doing. She should have been more careful because she knew it was wet there. So, because she knew it was wet there, she should’ve been more careful. But we were kind of saying the same thing just for the defendants. We were saying, “Well, they knew it was dangerous. They knew, because they had a recurrent condition. Every time it rained, it would be wet there. They had receptacles for umbrellas, yellow caution signs. They had access for these strips. They had access for the non-slip paint. We’re not even talking about that, but how about just patrolling and watching it and making sure it’s dry before you let the kids out, because it’s hundreds of people using that, those stairs and that exit.” But they didn’t do any of that.

So, it was kind of the same argument. And then they talked about the fact that no one else fell, which is also a common argument that defendants like to use. “How come you were the only one who got hurt?” And a lot of lawyers like to respond to that by talking about something like a landmine, because a landmine could be there and people could be walking and just no one happens to step on it. So, does that make it safe? Well, of course not because the one person that happens to be unlucky and step on it would obviously suffer a horrific injury.

And so what it really came down to is, and this is a phrase also that we used, was at the end of the trial, what were the signals of truth through all the noise? Because they heard a lot of different things, but what were the signals of truth? What did the jurors want to decide the case on? And so, at the end, the jurors were out there deliberating.

The way it works in New York is that we have a bifurcated trial. Meaning the first part of the trial is only about the question of liability or who is at fault. And so, the jurors could have said, “The plaintiff is at fault 100%.” Then we’re out, we lose. They could have said, “The defendant is at fault 100%.” Then we don’t necessarily win any money yet. It’s just a question of we’ve established liability. And then we do another trial for damages. So, another opening statement, another witnesses being called, the plaintiff has to testify, another closing statement, everything again, but for damages.

And sometimes even, you would get a separate jury for damages. This case, I think, we were going to keep the same jury, but it depends on the scheduling and things like that. So, in this case, while the jurors were deliberating on liability and making a decision, we were also discussing settlement, because settlement can be discussed at any point before you file a lawsuit, or even before the jury renders a verdict. Sometimes even after the jury renders a verdict, if they render a high verdict, you could settle because now you’re going to be faced with an appeal that could take two years.

So it could be really at any time. So, we discussed a settlement and we agreed to a settlement of $1,400,000, which the client was very happy with. And we thought it was a fair settlement.

So, okay. I hope this has been helpful. This is a little bit of a peek into an actual trial. What happened, what were the arguments, and this one is mostly about liability. Although we talked about what the injury to the client was.

Next time, maybe we’ll do a case either that we tried or that we settled, where we talk about both. We talk a little bit about the liability and the issue of fault, as well as the issue of damages. And damages really goes to many different things. Because with damages, you’re really talking about all of the harms and losses that a person suffers as a result of any type of incident. So, it could be not just pain and suffering. It could be economic, such as losing your income, your salary, your wages. It could also be the cost of medical care in the future, the cost of medical care in the past that you’ve had to incur or that you will have to spend in order to be healthy. You just have to.

And then the other thing that damages really involves is a story about your life, who you were before this incident and who you are now, getting friends, family members to testify and to paint that picture, using photo albums, using perhaps even your Facebook or your profiles on social media to show, “Hey, before this happened, I was biking. I was going to my son’s soccer games. I was very active. After this happened, I wasn’t able to do it.”

For example, in this case, we already had one story actually with regard to soccer games, because she was a soccer mom and one of her children was a very good soccer player. So, before, she would drive her child, she would practice with her child, she would engage in physical activity herself. After this surgery, she was at the soccer game, but she had a four-point walker and all the other parents were coming up to her and saying, “Sylvie, what happened? Why are you with this walker?” And she would have to retell the story. And every time she retells the story, it would bring up all those memories.

And so, those are the kind of things that we can get into. And in New York, there’s actually a Pattern Jury Instruction that is for the loss of enjoyment of life. And so, we can show the loss of enjoyment after a serious accident. And then how that affected someone’s life.

Okay. I hope this has been helpful. Please drop us a comment, subscribe to our podcast, let us know what other topics you’d like to hear about. We have a lot of trial stories from all types of cases, construction, work accidents, slip and falls, premises, ceiling collapses. We have brain injuries. We have spinal cord injuries. Medical cases with medical mistakes. All types of cases. So whatever you’re most interested in is what we’re going to talk about.

Have a great day, everyone. Bye bye.