$15M awarded in pool stairway slip-and-fall
The settlement consisted of $12 million from an AXA XL excess coverage policy and $3 million total from three other policies.
A man severely injured after a deteriorating wooden stairway gave way at a condominium swimming pool agreed to a $15 million settlement of his Hudson County, New Jersey, suit on Feb. 8.
James Visconti, an employee of Preferred Pool Management Inc., was servicing the Harmon Cove IV community pool in Secaucus on Sept. 6, 2018, when stairs leading to a storage room collapsed, according to court papers. When Visconti put his foot on the second step, the tread detached from the stringer, his right foot hit the pavement and he fell onto his back, according to court papers.
Visconti initially felt pain in his lower back and his right foot, but he did not seek medical treatment until four days later, when he saw his primary care doctor, according to court papers. His back pain subsided but the pain in his right foot and ankle got worse. In January 2019 he underwent surgery for orthopedic injuries to his right foot, but afterward his recovery did not progress as expected, according to court papers.
Nearly a year after the accident, a pain management specialist diagnosed Visconti with complex regional pain syndrome [CRPS], a condition characterized by pain that is greater than would be expected from the injury that causes it.
Visconti developed left knee instability due to overuse of that leg and a meniscal tear, which were repaired in an operation in January 2021. He was also diagnosed with focal midline disc herniation superimposed on an underlying disc bulge at L5-S1, an L4-L5 disc bulge, and meniscal tears in his left knee, according to court papers. He also developed severe persistent depression and other psychological diagnoses. All told, he had approximately 100 operative procedures after the accident, according to court documents.
Visconti is unable to walk, bathe or dress himself and he frequently experiences nausea and vomiting because of the pain, according to a court document.
Visconti filed the case, Visconti v. Harmon Cove IV Condominium Association, against the Harmon Cove IV Condominium Association and Wilkin Management Group in December 2019.
In July 2022, a judge granted Visconti’s motion for partial summary judgment on res ipsa loquitor pursuant to a 1984 New Jersey Supreme Court ruling, Brown v. Racquet Club of Bricktown, said Timothy J. Fonseca of Corradino & Papa in Clifton, who represented Visconti. That allowed the plaintiff to shift the burden of liability to the defendants, who were called on to explain that the steps collapsed for some reason other than their negligent maintenance, Fonseca said. The defense could not articulate any other reason for the stairs to collapse, Fonseca said.
Harmon Cove and Wilkin filed a third-party complaint against Preferred Pool Management, Visconti’s employer. A trial judge, granting Harmon Cove’s motion for summary judgment, determined that Preferred owed it indemnification, Fonseca said. But the Appellate Division reversed in November 2022, finding that the question of whether Preferred was obligated to indemnify Harmon Cove was an issue for a jury to decide, Fonseca said.
Meanwhile, Harmon Cove filed a separate suit in U.S. District Court against the insurance carriers for Preferred, seeking to compel them to indemnify Harmon Cove. That case was still pending at the time the case settled.
The suit was mediated twice, with no immediate resolution, Fonseca said. The suit was slated for trial on Feb. 20, with prequalification of jurors starting Feb. 4. While lawyers endeavored to find jurors willing to participate in a four-week trial, the defendants made a global offer of $12.5 million, which he rejected, Fonseca said. Then, the defendants offered $15 million, and he accepted, Fonseca said. The offer was placed on the record Feb. 8.
The settlement consisted of $12 million from an AXA XL excess coverage policy and a $1 million policy from Chubb, both from policies carried by Harmon Cove IV, plus $1 million from Indian Harbor Insurance Co. policy and another $1 million from a Liberty Mutual policy, both held by Preferred.
Fonseca was assisted by Jack Corradino, Glenn D. Kohles Jr. and Joseph A. DeFuria of his firm.
Mark Vespole and Jennifer Moran of Wilson Elser represented Harmon Cove IV and Wilkin Management. Vespole confirmed the settlement. Michael Palma of the Law Office of Frank Viscomi in Marlton represented Preferred. He did not return a call about the case.