Virginia Lawyers Weekly VA Lawyers Weekly
Type of action: Premises liability/negligence
Injuries alleged: Lower extremities and abrasions to torso, upper extremities, and head. Additional diagnoses include mild traumatic brain injury, PTSD, neurocognitive disorder and major depressive disorder
Court: U.S. District Court for the Eastern District of Virginia, Alexandria Division
Name of judge or mediator: Judge Michael S. Nachmanoff
Special damages: Medicals totaling $63,929.53
Demand: $575,000
Verdict or settlement: Settlement
Amount: $330,000
Attorneys for plaintiff (and city): David E. Sher and Adam M. Collins, Fairfax
Description of case: On Dec. 6, 2018, the plaintiff was shopping in a retail department store in Fairfax County. While shopping, the plaintiff stepped on a second-floor escalator heading down to the first floor when the escalator forcefully shook, jerked and lurched before coming to an abrupt stop. The plaintiff tumbled head over heels down the escalator steps, causing multiple injuries.
As a result of the fall, the plaintiff sustained lacerations to the legs and abrasions to the body caused by the jagged edges of the escalator’s steps. The plaintiff also sustained a head injury, which caused throbbing head pain, dizziness and nausea. The plaintiff was transported by ambulance to INOVA Fairfax Hospital for emergency medical treatment including wound care, multiple imaging tests of the lower extremities, CT scans of the cervical spine and head and a 12 lead ECG. The plaintiff was diagnosed with multiple abrasions, pain the left lower extremity and muscle spasms. The plaintiff was prescribed medication to address pain and muscle spasms before being discharged.
In the weeks following the fall, the plaintiff experienced cognitive decline manifesting in multiple ways including anxiety attacks and vivid nightmares causing shortness of breath, a pounding heart and uncontrollable sweating. The plaintiff also experienced labile emotions, cognitive haziness and multiple episodes of vertigo and dizziness causing loss of balance and confusion. According to doctors, the plaintiff’s recurring cognitive, neurological and psychological symptoms met the criteria for post-traumatic stress disorder, or PTSD; major depressive disorder, or MDD; and mild neurocognitive disorder, or NCD. The plaintiff’s neurologist reported that the plaintiff’s condition will require progressively higher levels of medical and nursing care.
Although plaintiff’s counsel was only provided one-year of escalator service and maintenance records predating the plaintiff’s fall, the records obtained listed several incidents of escalator mechanical failures and/or shutdowns. In fact, the escalator was shut down for service on Dec.3 and again on Dec. 4, 2018, mere days before the plaintiff’s fall. The plaintiff’s position was the service and maintenance records demonstrated recurrent mechanical failures giving ample notice to the defendant of the dangerous condition presented by the escalator to the retail department store’s business invitees.
The plaintiff designated Tim Marshall of CED Technologies, Inc., a liability expert in the field of escalator and elevator maintenance, who was prepared to opine on the negligent maintenance of the escalator prior to the plaintiff’s fall. Further, the plaintiff’s liability expert was expected to testify the plaintiff’s fall and resulting injuries would likely have been prevented with proper escalator maintenance and strict compliance with contractual obligations related to the servicing of the escalator.
Originally filed in Fairfax County Circuit Court, defendant removed the case to the U.S. District Court for the Eastern District of Virginia, Alexandria Division. Pursuant to a contractual agreement with the defendant, a third-party escalator service and maintenance company accepted the defendant’s tender of defense and substituted in as counsel for the defendant. With a jury trial scheduled, the parties agreed to a voluntary settlement conference with Judge Michael S. Nachmanoff which resulted in the parties achieving a $330,000 settlement.
Adam M. Collins, counsel for the plaintiff, provided case information.
[022-T-031]
