In May 2012, Judi DeMarco, then 49 years old, was a house guest at the Ballston Spa home of her brother Jeffrey DeMarco and his wife. Ben, their 10 year old son, begged his aunt Judi to jump with him on the trampoline in the side yard. She did so and was injured when, against safety rules his parents had imposed, Ben began double-jumping (a dangerous practice in which one person jumps off-pattern from the second jumper changing the timing of their jumps and often causing the second jumper to be thrown higher or even off the trampoline entirely). Judi was thrown off balance, and she fell on the trampoline, which hit her in a way that several bones in her foot were badly fractured.
In Ms. DeMarco’s ensuing lawsuit against her brother and sister-in-law, a Saratoga County jury found that Ben had engaged in double jumping while plaintiff was on the trampoline and that the defendants were negligent (in failing to supervise their son or warn plaintiff about the danger of double-jumping). The jury also found that plaintiff, who had no knowledge of double jumping, did not assume the risk of double jumping and was not otherwise negligent herself.
The jury then awarded pain and suffering damages in the sum of $800,000 ($220,000 past – four years, $580,000 future – 29 years).
In DeMarco v. DeMarco (3d Dept. 2017), both the liability and damages verdicts have been affirmed.
Here are the injury details:
- Lisfranc injury and other foot fractures with disrupted mid-foot joints
- Surgery #1 – open reduction internal fixation with implantation of several screws and pins to stabilize the fractures and joints with three months non-weight bearing plus three months of rehabilitation
- Surgery #2 – removal of the pins
- Surgery #3 – mid-foot fusion due to disabling post-traumatic arthritis, with capsulotomies (in which tendons were cut to properly realign the toe)and the removal of three mid-foot joints and resultant very limited motion in the joint
- Surgery #4 – arthroplasty of the second metatarsophalangeal (MTP) joint, with implantation of a Hemi-CAP, to repair additional fractures and implant a new joint
Plaintiff underwent physical therapy twice a week for as much as a year after each surgery and was left with daily pain and an antalgic gait and unable to wear normal shoes. Her treating orthopedic surgeon testified that she faces the prospect of additional arthritis and associated pain in other joints in her foot and that there is a high likelihood plaintiff will need additional surgery because her foot remains “severely damaged.”
- Before trial, plaintiff was examined by a physician for the defense but he did not testify at trial and defendants put no medical evidence in the record.
- During jury selection, several potential jurors stated they didn’t think one should be suing one’s brother.
- The trial lasted just two days and the jury reached is unanimous verdict after only one hour of deliberations.