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$800,000 Premises Liability-Fall Down Dangerous Stairway

Sheehan v. Balanced Health and Fitness, Inc., et al

Barnstable Superior Court C.A. No. 11-690-A

Result:  $800,000 Settlement

Date of Settlement: March 17, 2014

Plaintiff fell down stairs at the rear entrance to a health club located in the basement of a strip mall in North Falmouth. Plaintiff alleged the stairs were unreasonably dangerous due to an absence of handrails and lack of a landing. Plaintiff brought claims for negligence and violation of Mass. Gen. Laws Ch. 93A against the health club and the owners of the strip mall who rented the basement to the health club. As a result of her fall, plaintiff shattered bones in her foot requiring bone graft and fusion surgery and broke her wrist requiring insertion of permanent hardware. She missed a year from work due to her injuries. At the time of her injury, she was working as an aide for a program for women with substance abuse problems and was escorting them to the health club.

Plaintiff alleged that the stairway violated the requirements of the Massachusetts Building Code and widely accepted industry standards. The defendants contended that the stairs in fact had handrails, that an occupancy permit had been granted to the space in 1986, that plaintiff could not show that additional or different handrails would have prevented plaintiff’s fall, and that plaintiff was comparatively negligent for not using the front entrance stairs which had handrails or the building elevator, and that no other persons had previously fallen on the stairs. The defendant landlords also argued that they could not be liable as a matter of law as the rear stairway was part of the leased premises and not a common area.

In response plaintiff was prepared to offer photographs of the stairs showing a lack of handrails and asked the Court to allow the jury to take a view of the stairway. She was also prepared to offer expert testimony that the stairs did not meet Building Code requirements either in 1986 or the present. Moreover, the configuration and use of the basement had been changed since 1986 requiring application for a new building and occupancy permit which would have triggered a new inspection which would have called the violations to the Town’s attention and required compliance with the current Building Code. Plaintiff also would have introduced evidence that her employer required her to use the rear stairs.

With respect to the defendant landlord, a husband and wife, plaintiff was prepared to offer evidence that they retained shared control over the rear stairs and that the husband had personally expanded the leased space prior to the plaintiff’s fall, without applying for the required permits. Moreover, the husband was the President of a Construction Company which built the strip mall in the 1980’s. Although he claimed ignorance of current Building Code requirements as to handrails, the defendant wife admitted that approximately three months prior to plaintiff’s injuries he had actual knowledge of the requirements, because the Town required him to install handrails on their stairs to get an Occupancy Permit for their new house, which he built himself. Moreover, although the defendant husband landlord claimed not to have an active construction company, plaintiff would have introduced evidence that he filed an Application with the Town of Falmouth in 2009 to be the developer of a Ch. 40B affordable housing development.

Plaintiff would also have offered evidence that following the plaintiff’s injury, the defendants stopped allowing the rear stairs to be used as an entrance, without any disruption of the health club’s business. Plaintiff would also have presented the video testimony of her treating Orthopedic Surgeon, the Director of Foot and Ankle Sports Medicine at MGH that she will have permanent impairments due to her injuries and subpoenaed three private investigators, hired by one of the defendants, who admitted at deposition that their clandestine surveillance verified plaintiff’s limp.

The case settled for $800,000 after three unsuccessful mediation sessions, while plaintiff’s counsel was aggressively seeking a prompt trial date.


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