By Virginia Lawyers Weekly
Published: November 2, 2009
Liability was hotly contested in this slip-and-fall accident on a Fredericksburg city sidewalk.
The accident took place during the evening hours of Dec. 11, 2005. The plaintiff, a 47-year-old stay-at-home mother, was participating in the Annual Christmas Candlelight Tour as a chaperone for her daughter’s high school chorus group. She slipped and fell after stepping on what appeared to her to be wet pavement. It was actually a missing piece of the sidewalk that had been removed, but never replaced, by a contractor repairing a sewer lateral.
The city had granted the contractor’s special excavation permit in October and subsequently approved his work on Nov. 16 after a final inspection. The contractor then back-filled the area with dirt and leveled it off. However, no one ever repoured the concrete for the sidewalk until after the plaintiff’s fall on Dec. 11. There were no warning signs/cones at the time of the plaintiff’s fall.
The contractor argued that it was the city’s responsibility to repair and replace the sidewalk, that the city had notice of the condition as a result of the final inspection and that the city failed to repair it within a reasonable time. The city argued that the contractor failed to return the area of his excavation to a safe condition.
Both defendants argued that the plaintiff was contributorily negligent in failing to observe an open and obvious condition. The plaintiff was walking with other individuals who saw and avoided the area in question.
As a result of the fall, the plaintiff suffered a ruptured right Achilles tendon. She went to a podiatrist the following day, and he ultimately performed surgery to repair the rupture. Surgery was followed by a course of physical therapy and follow-up visits with the podiatrist.
The claim resolved during mediation with the city’s insurer paying $80,000 and the contractor’s insurer paying $20,000 for a total settlement of $100,000.
[09-T-157]
Type of action: Slip and fall – negligence
Injuries alleged: Ruptured Achilles tendon
Name of case: Barbara Higgins v. City of Fredericksburg & Atlas Rooter
Court: Fredericksburg Circuit Court
Case No.: CL07-729
Tried before: Mediation
Special damages: $22,514.58 – past medicals
Verdict or Settlement: Settlement
Amount: $100,000
Date: March 4, 2009
Insurance carriers: Virginia Municipal Liability Pool & Central Mutual
Plaintiff’s attorneys: David M. Williams Jr. and Douglas A. Barry, Fredericksburg
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