Trial Magazine

Janet Cross, 52, walked out on her home’s elevated deck. As she leaned against the railing, a section of it fell away from the deck post and collapsed. Cross, who lived alone, fell approximately 14 feet to the ground and lost consciousness. She was allegedly unconscious for eight to 10 hours before regaining consciousness and calling an ambulance.

Cross sustained multiple injuries, including spinal fractures at T4-6, fractures to both wrists and four ribs, and a concussion. She underwent open reduction internal fixation of the spinal and wrist fractures, followed by about six months of physical therapy. Her past medical expenses totaled $163,000. She continues to suffer from pain and a reduced range of motion in both wrists, resulting in a 50 percent loss of function in each hand.

An architect, Cross missed about six months of work. She now has difficulty drawing plans and constructing models for work, and she has been unable to resume skiing and other favorite activities.

Cross sued the subcontractor that installed the deck railing and the contractor that hired the subcontractor, alleging that the railing was not adequately secured. Specifically, she contended that the railing should have been attached to the posts with brackets and galvanized nails, not the interior finishing nails the subcontractor used. As a result, the plaintiff contended, a section of the railing had detached from the post.

The defendants argued that the railing, which was installed about four years before the incident, had collapsed as a result of poor maintenance and that the town inspector had signed off on the deck as structurally safe when it was built. The defense also argued that the plaintiff could not prove she fell from the deck because the incident was unwitnessed and she had no memory of the incident from the time she walked out onto the deck until she regained consciousness.

In response, the plaintiff’s treating orthopedic surgeon testified that Cross’s injuries were consistent with a 14-foot fall.

The jury found that the subcontractor was negligent in constructing the deck and that it was acting as an employee of the contractor in doing so, leaving the defendants jointly and severally liable. The jury then awarded approximately $1.24 million, including $475,000 for past pain and suffering, $425,000 for 25 years of future pain and suffering, $175,000 for past lost earnings, and $163,000 for past medical expenses.

The subcontractor’s motion to set aside the jury’s verdict is pending as of this writing.

Citation: Cross v. Roberts, No. 5808/12 (N.Y. Sup. Ct. Dutchess Cnty. July 18, 2017).

Plaintiff counsel: Dirk Galbraith, Ithaca, N.Y.

Plaintiff experts: John Calderon, architecture, Beacon, N.Y.; and William Barrick, orthopedic surgery, and Michael Cho, neurosurgery, both of Poughkeepsie, N.Y.

Defense experts: Scott Haig, orthopedic surgery, Scarsdale, N.Y.; and Gary Young, vocational rehabilitation, West Trenton, N.J.