Premises Liability – Defendant Found 100% Negligent for Causing the Fall: Evidence Destroyed
New York Jury Verdict Review & Analysis
Supreme Court, Ninth Judicial District, Putnam County, New York.
LAURIE and CHRISTOPHER COSTELLO vs. MARIOS RISTORANTE & PIZZERIA, MARIO DINARDI, ET AL
DATE OF VERDICT/SETTLEMENT: September 18, 2015
RESULT: Plaintiff’s Verdict
Plaintiff’s architect expert: Gary Spilatro from New Rochelle, NY.
Plaintiff; Peter DeFilippis, Esq., Peter DeFilippis & Associates, New York, NY
JUDGE: Lewis Lubell
STATE: New York
Ankle fracture with two surgeries
This case involved a plaintiff [Mrs. Laurie Costello] in her early 50s who had purchased takeout food from the defendant [Mario DiNardi, the restaurant business owner]. As the plaintiff was leaving with the two items, she fell when pushing open the outer door leading to the steps outside, which contained additional tension and was missing the door handle. Plaintiff proved at trial that because of a number of previous incidents when patrons attempting to leave dropped food and drinks while turning the outer door handle, the defendant [Mr. DiNardi] created a “fix” by removing the entire handle and latch. The defendant then increased the tension on the door’s two pistons because difficulties with wind caused unintentional openings. The defendant did this work without applying for and obtaining required municipal permits. Mrs. Costello testified when she began to fall, she had no door handle or handrails present to catch her fall. The plaintiff’s expert architect contended that in addition to issues with the removal of the door handle, some seven building code violations [by Mr.DiNardi] contributed to the incident. She maintained that these violations included the absence of handrails, no landing on the outside of the door, no contrast between the walkway, step, and riser, which blended together being constructed of all the same colored material. The riser heights and nosings on the stairway were also not uniform as required. The defendant had reconstructed the entire entrance way and steps some four years prior to the incident without first applying for a building permit and scheduling an inspection with the Town of Carmel Building Department.
The plaintiff’s fall and aftermath were captured by surveillance cameras located on the exterior of the restaurant. Immediately after the incident, the plaintiff’s counsel sent a letter to the defendant to preserve any video of the plaintiff which might exist. The defendant certified in writing during the discovery stage that defendant did not have any video tapes of the plaintiff. However, it was revealed for the first time to plaintiff during the cross examination of the owner [Mr.Dinardi] that he did, in fact, possess a video of the entire fall, yet he destroyed it six months after the incident. He also destroyed emails containing the digital file. At trial, the plaintiff immediately moved to strike the defendant’s answer for intentionally or negligently destroying a key piece of evidence. The court held that it would be more appropriate to instruct the jury that they were free to draw an adverse inference from the failure to preserve the tape.
The jury found the defendant 100% negligent for causing the fall. The jury was disbanded by the court before deciding damages as only six jurors remained (two had been previously excused by the court) and the Judge had another trial beginning on his calendar. Damages [including punitive damages] are expected to be tried in 2016. Plaintiff shall request the spoliation charge be given to the jury in that phase as well since the destroyed video apparently also captured the plaintiff’s pain and suffering immediately after the fall. Further, a finding of spoliation is “law of the case.” The plaintiff’s application for sanctions, attorney’s fees, and penalties in connection with the destruction of evidence is still pending, and a hearing is to be held. The plaintiff suffered a trimalleolar ankle fracture and required two surgeries with a recommendation by her orthopedic surgeon for a full reconstructive third surgery in the future.
PUBLISHED IN: New York Jury Verdict Review & Analysis, Vol. 32, Issue 9