Trial Magazine

Six-year-old DaJuan McCall and his brother went with an adult chaperone to an event at a Brooklyn church. After arriving, the two boys were permitted to play in the church’s rear playground and parking lot area. As DaJuan was playing, he leaned backward over a railing and lost his balance, falling seven feet to the bottom of an exterior staircase abutting the lot.

DaJuan suffered a skull fracture in the left parietal region, resulting in the formation of a clot. Although the clot dissolved after about two years, the brain injury left DaJuan with cognitive deficits that affect his thought processing and his reading and verbal comprehension. Although he completed school with an individualized education plan and graduated from a community college, his employment prospects are limited.

A post-incident investigation revealed that the railing over which DaJuan fell was the bottom portion of an open fence that originally consisted of two railings—one about 14 inches high and the second about 33 inches high. At the time DaJuan fell, the top railing had been missing for several years for unknown reasons.

DaJuan’s mother, on his behalf, sued the church, alleging that the fence with the missing upper railing constituted a hazard on the premises and that the defendant was negligent in failing to repair the fence or warn of the danger and barricade the area. The plaintiff’s expert testified that if the top railing had been in place, DaJuan would not have fallen.

The church argued that the fence was designed as a barrier for vehicles, not for pedestrians, and that the incident was caused by the adult chaperone’s failure to properly supervise DaJuan. The defense also argued that DaJuan’s employment prospects were more ­promising than he claimed.

The jury awarded $1.35 million, allocating fault at 70 percent to the church and 30 percent to the adult chaperone. The award included $867,000 for lost future earning capacity, $250,000 for future pain and suffering, $133,000 for past pain and suffering, and $100,000 for future medical expenses. Because the church was found more than 50 percent at fault, it is joint and severally liable for the entire verdict. Counsel anticipates that after interest is added, the award will total approximately $1.58 million.

Citation: McCall v. St. Paul’s Cmty. Baptist Church, No. 5996/08 (N.Y. Sup. Ct. Albany Cnty. Dec. 16, 2016).

Plaintiff counsel: Christopher P. Meyer, Albany, N.Y. Plaintiff experts: Richard Pikul, civil engineering, Wamego, Kan.; Ruth Lax, neuropsychology, New Hyde Park, N.Y.; Marvin Reed, vocational rehabilitation, Syracuse, N.Y.; and Kevin Decker, economics, East Greenbush, N.Y.

Defense expert: Richard DeBenedetto, neuropsychology, Mount Kisco, N.Y.