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Parties Disputed Whether Tree Well Was a Dangerous Condition


Marino v. Torchlight Loan Services

$40,000 Verdict

Date of Verdict: June 25.

Court and Case No.: C.P. Bucks No. 2013-07699.

Judge: Robert J. Mellon.

Type of Action: Premises liability, slip-and-fall.

Injuries: Wrist fractures.

Plaintiffs Counsel: Jason R. Weiss, Haggerty, Goldberg, Schleifer & Kupersmith, Philadelphia.

Plaintiffs Expert: Ronald J. Cohen, engineering, Malvern.

Defense Counsel: David T. Bush, Forry Ullman, King of Prussia.


On Dec. 15, 2012, plaintiff Joann Marino, an accountant in her 60s, tripped and fell when she stepped into a tree well on a mall sidewalk, in New Hope. She suffered fractures to both wrists.

Marino sued property owner CBRE Inc., alleging that it was negligent for allowing a dangerous condition to exist on its premises.

Torchlight Loan Services and Torchlight Investors had been improperly named in the lawsuit's caption and were dismissed prior to trial.

Marino alleged that she had been walking with a friend and had her head turned to her right when she stepped into the tree well, causing her to trip and fall. The tree well had a depression of about 1.5 inches and contained rocks and mulch.

Marino's expert in engineering testified that there should have been a metal grate covering the tree well to make it flush with the sidewalk. The lack of a grate made the tree well a dangerous condition for pedestrians, since it was not in their line of vision and they would not have immediately recognized it, especially if they were window shopping or looking for their parked vehicles. The expert determined that the defective condition violated standards set by the American Society for Testing and Materials.

The defense counsel contended that the tree well was an open and obvious condition and noted that there had been no prior accidents related to it. Counsel faulted Marino for the accident, pointing out that she had her head turned and was talking to a friend rather than paying attention to where she was walking.

After she tripped, Marino outstretched her hands to brace her fall. She was taken by ambulance to a hospital, where she was admitted and diagnosed with bilateral distal radius fractures.

Marino had open reduction and internal fixation surgery, with plates and screws implanted. After she was discharged, Marino began a course of physical therapy, which included exercise, and consulted with her surgeon. She treated with about four months of physical therapy.

By the summer of 2013, Marino was discharged by her surgeon. She sought to recover a medical lien of approximately $18,000 and about $9,000 in lost wages, having missed two months of work.

Marino's counsel cited her medical records to attribute her injuries and treatment to the accident.

Marino testified that, in the initial months after she returned to work, she required ergonomic devices to assist with her job duties. She said that she continues to experience wrist pain and discomfort which affect her ability to interact with her grandchildren and to practice yoga. She sought damages for past and future pain and suffering. Her husband had withdrawn his claim for loss of consortium, prior to trial.

The defense did not dispute Marino's injuries and treatment, and the court entered a directed verdict in favor of Marino on the issue of causation.

The jury found Marino was 46 percent liable for her accident and CBRE Inc. was 54 percent liable. Marino was determined to receive $40,000, which was reduced to $21,600 to reflect the apportionment of liability.

This report is based on information that was provided by plaintiffs' and CBREs' counsel. The remaining defendants' counsel was not asked to contribute.

—This report first appeared in VerdictSearch, an ALM publication.