Wood Smith Henning & Berman is pleased to share that partner Andy Kessler has secured a favorable award in a binding arbitration that had been pending since 2017 in the Montgomery County Court of Common Pleas.
"I remember when our client reached out following the presentation of this claim discussing the wild demand, and strategized with them on the how best to approach the defense and bring the lofty ambitions of plaintiff down to a reasonable level," said Andy Kessler, managing partner of WSHB's Philadelphia office.
Pandemic delays and the ensuing backlog of cases contributed to the protracted arbitration, "and as time passed, the demands grew," commented Kessler. This case has been ongoing for seven years. Four years ago, the plaintiff settled with three other defendants, for an undisclosed amount, yet Kessler's client was steadfast in its commitment to see this matter to its conclusion. At the end of the day, the award in favor of the defense was a long-awaited relief and hard-fought victory.
The case involved a woman who slipped on an icy sidewalk in front of the client's restaurant shortly after the culmination of a winter storm. As a result of the fall, the plaintiff, then 52 years old, fractured portions of her left foot and underwent four surgeries over the course of the next eight years. A fully employed professional in the women's apparel field, she claimed she was totally disability as a result of the fall and presented the arbitrator with claims for damages including: $320,000 for past medical bills; $190,000 for future medical expenses; and a loss of earning capacity claim ranging from $800,000 to $1.4 million.
After considering the plaintiff's case, the arbitrator ruled in favor of WSHB's client, closely aligning the decision with the strategic arguments skillfully presented by Kessler.
"We are incredibly proud of Andy's extraordinary work on this case," said firmwide managing partner Stewart Reid. "This result is a testament to our firm's dedication to providing the best possible defense for our clients. It underscores the expertise and diligence that Andy brings to every case in his care."
Kessler argued that the arbitrator was duty bound to apply Pennsylvania's Hills and Ridges Doctrine that provides that property owners are not liable in situations where a slip and fall results from generally snowy/icy conditions in the community. The arbitrator reasoned that the plaintiff failed to prove the ice she slipped on outside the restaurant resulted from an act or omission of the landlord, as opposed to the generally icy conditions present throughout the city that day. The plaintiff's testimony concerning the presence of "old ice" was not persuasive, especially given the lack of photographic evidence of the area in question on the date of the incident.
In addition, the defense expert meteorologist demonstrated that there had been no precipitation in the week leading up to the incident, hence no liquid to form "old ice" that would have put the defendant on notice of a hazardous condition. Finally, the evidence demonstrated the freezing rain had stopped only fifteen minutes prior to the incident, and local ordinance provided property owners with 24 hours to clear the sidewalk of snow and ice. Kessler reminded the arbitrator that there was no legal requirement in Pennsylvania for property owners to pre-treat sidewalks with salt as a preventative measure.
"To say I was thrilled with this outcome, in light of the plaintiff's focus on damages and the alleged debilitating effects this injury has had on her life, is an understatement," remarked Kessler. "This case is a great example of perseverance winning the day."
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