This was an action involving the plaintiff, in his 30s, who was attending a co-ed children’s talent pageant in which the daughter of his longtime girlfriend was a participant. The plaintiff contended that the presence of an approximately two-foot-wide gap situated immediately behind the rear curtain of the temporary stage erected for the pageant constituted a hidden hazard, resulting in his falling as he attempted to stand behind his girlfriend and her daughter while posing for a photograph after the completion of the pageant. The plaintiff suffered a cervical herniation, which he maintained will cause severe permanent pain despite fusion surgery, as well as shoulder impingement syndrome which essentially resolved with surgery.
The pageant was held in the ballroom of the defendant hotel. The stage in question was constructed by the co-defendant rental agency specifically for use during the pageant; during general use, the ballroom did not have a stage. The plaintiff contended that the rental company that constructed the stage created the hazard and that the defendant pageant, who puts on such shows nationally, negligently failed to properly coordinate and supervise the activity. The plaintiff also named the hotel on the basis of its nondelagable duty to provide a safe premises. Finally, the plaintiff maintained that the co-defendant photographer was aware of the gap in the stage behind the rear curtain and nonetheless negligently failed to warn of the hazard when the photograph was taken shortly after the completion of the show. Prior to trial, the plaintiff entered into settlements of $75,000 with the hotel, $50,000 with the photographer and $15,000 with the rental company, proceeding to trial against the pageant.
The plaintiff related that after the pageant ended, he, his girlfriend and his girlfriend’s daughter returned to their room and then realized that they forgot to have the pre-arranged photograph taken. The plaintiff returned downstairs, and since the photographer was packing away his backdrop, it was decided that the rear curtain on the temporary stage would be used. The plaintiff maintained that after an initial photograph of the girlfriend and her daughter was taken, as the two were standing slightly in front of the rear curtain, he advised the photographer that he wanted another photograph taken in which he was included. The plaintiff contended that since he was wearing jeans, it was decided that he would stand behind the other two. The plaintiff maintained that as he stood behind the others, his feet slipped under the curtain and he fell through the gap – three feet deep and two feet wide – between the rear curtain and wall.
The plaintiff maintained that the pageant, which produced such shows in numerous different arenas and has stages constructed to its specifications, clearly should have better supervised the stage rental company, especially since the specifications did not make reference to the rear curtain, which the plaintiff argued constituted the major portion of the hazard.
The pageant contended that the preliminary responsibility rested with the hotel, which rented the space to the pageant and had a nondelagable duty. The pageant also pointed to the contract between the hotel and the pageant which provided that the hotel would supply the stage. The pageant maintained that if the stage were not in a safe condition, the hotel was at fault.
The defense further argued that the incident would not have occurred if the plaintiff had been paying better attention. In response, the plaintiff presented a human factors expert who testified that while engaging in normal activities, such as posing for a photograph, an individual would tend not to be looking for hazards, rendering such an individual all the more vulnerable to a hidden hazard than he or she would be in a situation in which they would be anticipating such danger.
The plaintiff suffered a cervical herniation and impingement syndrome. The impingement syndrome essentially resolved with surgery. The plaintiff contended, however, that the radiating cervical pain was severe and that despite fusion surgery, he continues to suffer chronic, severe pain on a daily basis. the plaintiff’s orthopedic surgeon contended that such pain is permanent, will not improve and that the plaintiff is at significant risk for deterioration in the future.
The evidence reflected that the plaintiff has been able to return to his position as a telephone lineman, and the defendant pointed out that it is clear that he is able to perform significant physical work. The plaintiff countered that he works despite the severe pain because of the economic necessity. The plaintiff introduced medical illustrations depicting the surgery and hardware in his neck and argued that in view of the objective nature of the evidence of severe injury, it was clear that his determination to continue in his job evidenced a very stoic and dedicated individual who engaged in such rigorous work despite the obvious impediments. The plaintiff contended that he has very little residual energy following work and has been forced to give up most activities he formerly enjoyed, including exercise, pickup sports with friends and attending a driving range with his daughter. The plaintiff also maintained that he frequently has difficulties sleeping. The defendant did not present its examining physician, and the plaintiff argued that it was unrebutted that the plaintiff will permanently suffer severe pain which will not improve and may well deteriorate in the future.
The jury found the settling hotel 70% negligent, the settling photographer 5% negligent, exonerated the settling rental company and found the non-settling pageant 25% negligent. It then rendered a gross award of $3,000,000. The non-settling defendant’s post trial motions are pending.
COMMENTARY:
It is felt that the plaintiff obtained a particularly substantial award in view of the fact that he was able to return to his job as a telephone lineman, despite the herniation and need for fusion surgery. The plaintiff made effective use of demonstrative evidence in the form of medical illustrations, which depicted the nature of the fusion surgery and the titanium plates, and it is thought that this evidence placed the plaintiff in a very favored light. In this regard, the plaintiff contended that in view of the obvious and objective nature of the injuries, the continuation of this work evidenced a very determined and courageous individual who would not permit the injuries to have a greater effect on his life than absolutely necessary. Additionally, the traumatic nature of the incident, in which the plaintiff was suddenly confronted with the hazard of the wide gap that was hidden by the rear curtain of the stage, probably had a significant impact on the jury. Finally, with respect to damages, the plaintiff emphasized that the unrebutted medical evidence reflected that the plaintiff will not have any improvement, that his condition may well deteriorate in the future, and argued that the jury should consider that he will suffer this pain for a total of 45 years, inclusive of his 41 year actuarial life expectancy, combined with the four years of past pain and suffering.
Regarding liability, the jury assessed 70% negligence against the settling hotel, notwithstanding the plaintiff’s arguments that as the entity producing the shows at different locations around the nation, it had the most expertise and should have coordinated the work that was done to its specifications. The pageant, who argued that the jury should give consideration to the contract between the hotel and pageant, in which the hotel agreed to provide the stage, was probably also helped in its endeavors to assess a larger percentage against the settling hotel by the strong language in the jury charge regarding the hotel’s nondelagable duty. Finally, the plaintiff, who avoided the assessment of any comparative negligence, stressed through the testimony of his human factors expert that since the plaintiff was engaging in normal, everyday activities, such as posing for a photograph, he would tend not to be on the lookout for potential hazards and that his factor would, in and of itself, tend to make him much more vulnerable.
REFERENCE
M.P. vs. American Co-Ed Pageants, Inc. Docket No.: PAS-L-1149-00; Judge Burrell Iyves Humphreys, October 9, 2002.
Attorney for plaintiff: Charles A. Cerussi of Red Bank and Manhattan.
