Below is the plaintiff’s mediation statement prepared for the mediation.  We took out names of the names of the people involved, or substituted fictional names.

If you or anyone you know have suffered a serious injury from a fall on snow or ice contact the personal injury lawyers at The Bartinik Law Firm, PC., 100 Fort Hill Road, Groton, CT. at 860 445 8521 or toll free at 888 717 4211.

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September 11, 2013,

RE:    Plaintiff’s Mediation Statement
Plaintiff v. Defendant property owner and snow plow contractor

Dear Mediator:

Brief summary.
This is a fall down on ice case with good liability.  The defendants are the property owner, and the snow plow contractor.  This is a commercial property.  The plaintiff was on his way to work at the time of the fall.  He chose not to file a Workers Compensation Claim.  The plaintiff suffered a serious shoulder injury had has been through two surgeries.  His medical bills are over $120,000.00.
Brief summary of the plaintiff.
Plaintiff is 55 years old.  He is married father of three children in their mid 20s.  He worked full time as a chef at The Restaurant where he worked for the past 16 years until his second surgery in March 2013.  At the time of his injury, January 3, 2010, Mr. Plaintiff had at least one child in college.  He has a great work ethic, and will appear honest and frank to the jury.
Damages.
Plaintiff suffered serious injuries to his left shoulder.  He also broke two ribs.  All of his injuries are on his dominant side as he is left-handed.  To compound matters, Plaintiff has earned his living using his hands and arms as a chef.
Plaintiff has endured two invasive shoulder surgeries to his left shoulder.
His second surgery was in March 2013.  He still suffers from daily pain to his left shoulder.  He cannot lift his left arm over shoulder level with serious pain, and he cannot lift his left arm over his head.  He has swelling in his shoulder.  He has trouble sleeping every night.  In his deposition he said he only sleeps 4-5 hours per night.  He cannot sleep on his side because to lie on his left side is impossible.  He must sleep on his back.  When he sleeps on his right or on his back he sometimes finds himself moving over to his left side when he sleeps which causes him to either wake up from pain, or have serious pain in the shoulder the next day.
He is left-handed.  So, all of his activities that require the use of his left side are greatly affected.  Reaching with both hands is difficult because he can’t really use his left arm.  He used to go fishing a couple of days a week during the summer, and now cannot go fishing.  Stirring with his left is very harm.  Chopping with his left is hard.
His first left shoulder surgery was on February 1, 2012, and then his second was on March 13, 2013. According to the MRI films and the operative reports of February 1, 2012, and March 13, 2013 Plaintiff suffered multiple tears in the shoulder joint including tendon tears, and bone spurs.  His injury required the use of screws to hold the tendons in place.  He suffered a supraspinatus tendon tear, a biceps tendon tear, labral tears, and a subcapularis tendon tear.  The supraspinatus tendon was repaired on February 1, 2012, and also March 13, 2013.  His biceps tendon tear was a very large tear.  If just one of those tendon tears does not heal perfectly he will suffer pain a limited use of his shoulder.
Additionally, Plaintiff has several unsightly scars on his shoulder.  He has scars that are visible from the front and the back.  He also has a larger scar near his arm-pit from the work on his biceps tendon.
Plaintiff missed work after his surgery of February 1, 2012.  He has lost past wages of $1,105.00 per week for the three week period after his first surgery.  The total is $3,315.00.
Plaintiff’s total medical bills are $120,411.44 . Plaintiff’s medical bills are paid through his wife’s health insurance through her employer Norwalk Hospital.  There is a lien of $27,505.33.
Plaintiff has a claim for lost earning capacity.  That claim is based on his left shoulder injury, and its effect upon his ability to earn a living as a chef.  He has earned a living as a chef for all of his adult life.  It is reasonable to believe that his ability to use his left arm is now compromised, and that will make his less effective as a chef.
Liability.
The fact of the case.
Sunday, January 3, 2010 was a workday for the Plaintiff.  His work shift started at 8am.  His shift was 8am to 3pm.  On that day, Plaintiff car-pooled with his co-worker Dilson. Mr. Plaintiff picked up Dilson, and drove him to work that morning.  They parked in the parking lot just before 8am.  Then the two of them walked down a paved walkway behind the Defendant Restaurant to enter the restaurant from the rear.
Plaintiff and Dilson were both deposed in this case.  Both of them said that they always used that path to get to work.  In fact, they will testify that their employer directed them to enter the restaurant from the rear.  Both will testify that they were walking outside on the back walkway behind Restaurant at 8am when Plaintiff slipped on ice, and fell hard to the ground.
Plaintiff slipped with both feet.  Not one.  His feet went into the air.  He landed hard on the ice. The ice was thick.  It was not plowed clean.  The ice was so thick that it was difficult to open the door from the inside because the bottom of the door did not pass easily over the ice buildup.  It was ice.  Not snow.  I had no sand, and no salt.
The fall itself was a hard fall on a hard surface.  Plaintiff testified that he went down hard.  He testified that he could not get up after he fell.  After the fall, Dilson went around the building to get help for Plaintiff.
When he landed, Plaintiff injured his left shoulder, and broke two ribs.  The fact that he suffered broken ribs on the left side is an indication about how hard he fell on his left shoulder.  The area upon which he fell is made up of hard asphalt, and it was covered with ice.
Defendant Property Owner, LLC.
The property where this fall occurred is a large mixed retail strip-mall type property managed by property managers, and owned by a family trust.  The defendant, LLC testified via its witness property manager Bob. The defendant is legally liable for the negligence of its contractor.  The defendant is also liable for its own negligence because the Defendant intentionally pours its roof runoff from building 3 over the walkway in the rear of building 3. The roof runoff for this property is specifically designed to drain directly onto the walkway from the gutter down spouts, which is a dangerous condition.  Additionally, portions of the roof have spots there the water drains through gaps in the roofline, and also drain directly onto the walkway.  As a result water flows directly across the walkway as the roof drains.  As the sun warms the roof in the winter water drips off the roof.  Then the water runs down the down spouts, and onto the walkway causing a freezing ice hazard.
Defendant Snow Plow Contractor.
Ryan is a principle at the defendant.  He admitted that Defendant was responsible to plow, sand, and salt the area of the fall.  His company was paid $4,000.00 per month under the contract.  Not only does the contract clearly place responsibility on Defendant, he freely admitted that his company was responsible under the contract to clear that area in question.  He described the area of the fall as the area behind “building number three.”  There is no question that Defendant was responsible to clear the place where Mr. Plaintiff fell.
The weather was clear before the fall.  It had not snowed for heavily for several days, and the defendant had ample time to clear the path. With due care, there was plenty of time for defendant to clear the ice between January 2, 2010 and 8am on the morning of January 3, 2010.  Essentially, the defendant had all day and night Saturday, and all morning Sunday to have the walkway clear of ice for the morning of Sunday, January 3, 2010.  Also, this was a commercial establishment.  So, defendant staff knew that people would be using the building on Sunday morning.  If they had cleared the path like they were required to do, this fall would not have occurred.
There were also warnings for this problem that the defendants were aware of.  Defendant was well of aware of the ice build up from the roof runoff off of building 3, and he freely admitted that fact in his deposition.  Also, it can be inferred through common sense that the defendant knew of the runoff problem since they owed the property.  Therefore, the defendants has prior knowledge of this problem.
The weather.
Ryan testified that it snowed in the days before the fall.  He has his handwritten notes to confirm that fact.  On December 31, 2010 there were two inches of snow.  On January 1, 2010 there was no snow.  On Saturday, January 2, 2010 there was one inch of snow, and it snowed on an off during the day.
The weather on the morning of January 3, 2010 was cold, and dry.  No rain, and no snow.  It was just cold, windy, and icy.  All witnesses including the plaintiff’s weather expert Art H, the plaintiff, Dilson, and the defendant’s principle Ryan agree that as of Sunday morning it was not snowing at 8am.  And they all also agree that for the few days before Sunday morning there was snow and icing conditions.  This proves that the defendant has (1) knowledge of the need to clear ice, and (2) time to do it had they acted with due care.
Moreover, Ryan also admitted that that on the day of the fall there was no snow until 9am, but he (Ryan) did not arrive at the property to start to plow until 11am.  This was, unfortunately too late for the plaintiff since the fall occurred at 8am, three hours before Ryan arrived at 11am to clear the ice.
Ryan also admitted that he was aware of the fact that the roof drain downspouts pour onto the sidewalks.  He admitted that this caused an icy condition due to the roof water runoff freezing onto the walkway.
Causation.
On August 19, 2013 the case was pre-tried with Judge R. and the defendants sandbagged the plaintiff with a claim that the plaintiff had a subsequent injury to his shoulder.
The defendants claimed that on June 15, 2011 the plaintiff suffered a “fracture” to his elbow, and that injury must have hurt his shoulder.  At the time of the pre-trial the plaintiff was unaware that the defendant was going to make this claim was taken by surprise.
The plaintiff did have a subsequent fall, but did not hurt his shoulder in that fall.  He suffered a contusion to his elbow, and one doctor commented that he might have a fracture to the elbow but that was before the radiology report.  But the radiologist report said no fracture which was something the defendants failed to inform Judge R. at the prior pre-trial.  And there was no treatment for the shoulder at all.  There was no reference to any more shoulder pain at the medical visit at issue.  This is a red herring.

Very truly yours,

Signed
Peter J. Bartinik, Jr.
PJB/pjb
Enclosures

If you or anyone you know have suffered a serious injury from a fall on snow or ice contact the personal injury lawyers at The Bartinik Law Firm, PC., 100 Fort Hill Road, Groton, CT. at 860 445 8521 or toll free at 888 717 4211.