On September 2, 2009, Yvan Lemoine slipped and fell down an interior stairwell at the premises of Planet Fitness in Astoria.
Yvan, then 28 years old, had been walking from the second to the first floor when wet, just-mopped stairs caused him to slip and fall down 14 stairs.
He had intense pain in his back that radiated upward and an ambulance was called. A neck brace was applied by a paramedic and Yvan was placed on a stretcher and taken to the local hospital emergency room. He was treated and released within a few hours with a prescription for narcotic pain medication and advice to follow up with additional medical help within a day or two.
A lawsuit was commenced later in 2009 and it came to trial in Queens in November 2011. The jury returned a verdict of full liability against the premises owner and then awarded Yvan pain and suffering damages in the sum of $160,000 ($20,000 past – two years, $140,000 future – 35 years).
Despite the defendant’s argument that it was excessive, the verdict has been affirmed in Lemoine v. Steinway Fitness, LLC (2d Dept. 2013).
Here are the injury details (none of which were disclosed in the appellate court decision):
- herniated disc at C5-C6 in contact with the ventral spinal cord
- bulging discs at L4-L5 and L5-S1
- unable to perform pre-accident activities without pain in neck, shoulders and back
Plaintiff’s medical treatment for his injuries consisted only of the emergency room visit and follow-up care with a chiropractor starting two days later and lasting for two years (tapering off to once a month in the second year).
The defense contended that plaintiff’s very active lifestyle after the accident belied his claim that he was seriously injured and in great pain. Prior to the accident, plaintiff had been extremely active – horseback riding, swimming, snowboarding and skiing. Afterwards, he was still able to engage in these activities, however, he testified that when he did so it was always in great pain.
Inside Information :
- Plaintiff was employed as a chef prior to the accident and was unable to do his usual work for 30 days due to his injuries. In 2012, though, he competed on the reality television series Food Network Star and after 11 weeks, on July 12, 2012, Yvan was named a top three finalist.
- Evidentiary issues arose regarding the admissibility of photographs and statements on plaintiff’s Facebook page; however, most of the information pre-dated the accident and the trial judge (upheld on appeal) excluded some as prejudicial, cumulative or because the defense failed to disclose its intention to use it. Plaintiff testified credibly (and charismatically) that he was trying to resume his life and activities even though he could do so only with much pain.
- Plaintiff’s pre-trial settlement demand was $100,000 against no offer. In summation, his attorney asked the jury to award $75,000 for pain and suffering damages but the jury awarded plaintff $85,000 more than requested.