Morrison Mahoney Partner Sean Milano recently obtained a defense verdict from a Middlesex Superior Court jury in favor of a firm shopping mall client after a three day trial. The plaintiff brought a negligence action against our clients, the shopping mall owner and managing company defendants, arising from an alleged trip and fall on an outside sidewalk curb at the mall. The plaintiff claimed that she was exercising due care, when she tripped and fell on a pavement “divot” in the area of a handicap ramp curb cut at the exterior entrance of one of the mall’s anchor retail tenant stores. The plaintiff sustained an elbow fracture of her dominant arm, as a result of the fall, which required surgical repair with internal fixation.

The plaintiff alleged that the area of irregular pavement at the curb near the retail store entrance constituted a defective condition that the defendants should have been aware of based on the frequent patrol of the mall premises by mall management, maintenance, housekeeping and security. Plaintiff also argued that because the area in question was a popular store entranceway, where visitors of the mall could be expected to walk, defendants had a heightened duty to keep the area in question well maintained.

The defense argued that there was no Building Code violation or unsafe condition at the location in question, per the testimony of defendants’ Building Code consultant expert witness; the small area of rough pavement in question constituted a minor irregularity that did not warrant repair; that no dangerous condition existed was confirmed by a more than five year span in which many thousands of visitor to the mall crossed over the area in question, without incident, and only the plaintiff reported tripping there; and that the plaintiff’s allegation that she tripped on an asphalt defect was mere speculation, as she had admitted in her deposition taken 14 months after her accident that she did not know what caused her to trip and fall.

Morrison  Mahoney Associate Meredith Lasna provided thorough deposition of the plaintiff, in which plaintiff admitted that she did not know what caused her to trip and fall or she blamed her fall on other curb conditions such as the slope of the handicap ramp, color of the sidewalk cement and lack of high visibility paint used on the curb. Plaintiff’s vacillating theories as to the cause of her fall made for effective cross-examination and closing argument using her deposition testimony against her.