New Jersey Verdicts
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Eighth-grader sued school after she fell over a cable, broke arm
Essex County Superior Court
arm-scar and/or disfigurement, arm;
elbow-fracture (fracture, olecranon), elbow (fracture, olecranon);
other-arthritis; other-scar tissue; other-physical therapy; other-pins/rods/screws; other-comminuted fracture; other-entrapment, ulnar nerve;
other-decreased range of motion; epidermis-numbness; epidermis-paresthesia; hand/finger-hand; hand/finger-finger; neurological-radicular pain / radiculitis; surgeries/treatment-open reduction; surgeries/treatment-internal fixation
Premises Liability – School; School – Negligent Supervision; Premises Liability – Failure to Warn; Slips, Trips & Falls – Trip and Fall; Premises Liability – Dangerous Condition; Affirmative Defenses – Contributory Negligence; Premises Liability – Negligent Repair and/or Maintenance
Yvonne Smith, as guardian ad litem of Destinee Dickens, a minor v. Township of Irvington, Irvington Board of Education, and Derek Strong,
September 18, 2017
Yvonne Smith (Male),
Destinee Dickens (Female, 13 Years)
Gregg Alan Stone;
Kirsch, Gelband & Stone, P.A.;
Yvonne Smith, Destinee Dickens ■ Ronald J. Morgan;
Kirsch, Gelband & Stone, P.A.;
Yvonne Smith, Destinee Dickens
Township of Irvington,
Irvington Board of Education
Ronald C. Hunt;
Hunt Hamlin & Ridley;
Derek Strong, Irvington Board of Education ■ None reported;
Township of Irvington ■ Yadira C. Duran;
Hunt Hamlin & Ridley;
Derek Strong, Irvington Board of Education
On Oct. 4, 2011, plaintiff Destinee Dickens, 13, was in gym class at Union Avenue Middle School, in Irvington. As her class was being led outside along a concrete path to the school’s athletic fields, Destinee attempted to jump over a sagging metal-wire cable, and fell. The cable was attached to two wooden posts about 15 feet apart, and the section that she had tripped over was about a foot-and-a-half off the ground. The cable had been installed to deter any vehicles from entering the athletic fields. Destinee landed on her left arm, fracturing her elbow. Destinee sued the Irvington Board of Education and gym-teacher Derek Strong, alleging that the school allowed a dangerous condition to exist and negligently supervised Destinee and her classmates. She also sued the Irvington Township, which was dismissed, prior to trial. Destinee’s counsel argued that the cable served no purpose, and was in fact a hazardous condition. There were no signs, barriers, or orange cones to alert pedestrians of its presence. According to the school district, the cable had been installed to prevent vehicles from entering the athletic fields. However, to the right of the wooden post was about 100 yards of open field which a vehicle could easily access, Destinee’s counsel argued, citing photographs of the area. According to Destinee, since her years at the middle school, starting in the sixth grade, she and her classmates would regularly jump over the cable, and she had done so multiple times without incident. Destinee’s counsel faulted Strong, a permanent substitute teacher, for allowing students to jump over the cable. Strong testified that he had repeatedly told the students not to jump over the cable and instead walk around it; however, Destinee testified that the teacher never had given such a warning. Moreover, during her years at the school, no warnings had ever been given by teachers about the cable. The school district maintained that it was not negligent and that any liability should be attributed to Destinee, who should have known that jumping over the cable jeopardized her safety.
Destinee was seen by the school nurse. Her grandmother picked her up from school and drove her to an emergency room, where she was diagnosed with a fracture to her left (non-dominant) arm. The fracture was an intra-articular, comminuted break at the elbow. She underwent open reduction and internal fixation surgery, during which about six screws were implanted. Weeks later, Destinee began physical therapy but had to stop after she experienced numbness, tingling, and paresthesia from her left elbow into her hand and fingers. It was determined that she was suffering entrapment of the ulnar nerve. She had another surgery to remove two of the screws and replace one screw with a shorter one. Destinee then resumed physical therapy. About a 18 months later, Destinee continued to experience neurological issues in her left arm, which included numbness and tingling throughout her left forearm and in her ring and little fingers. She had a third surgery to remove additional screws and scar tissue that had developed around the ulnar nerve, but it did not improve her condition. The teen was further diagnosed with arthritis. No further treatment was rendered. Destinee’s expert in orthopedic surgery discussed how she would develop further arthritis in her elbow. She is unable to fully extend her arm, and her range of motion will continue to diminish and affect her activities of daily living as she ages, the physician concluded. She had a 61.4-year life expectancy. At the time of trial, Destinee had graduated from high school and was working at Amazon. She intended to go to school to become a nurse. She discussed how the numbness and tingling is constant, especially in the morning, and how she has to favor her right arm. She also has a 6-inch linear scar on the outer aspect of her forearm across the elbow. Destinee sought damages for past and future pain and suffering, disfigurement, and loss of enjoyment of life. The school district did not dispute Destinee’s claimed injuries and damages.
The jury found Destinee was 25 percent liable and the Irvington Board of Education was 75 percent liable. Destinee was determined to receive $8 million, which was accordingly reduced to $6 million. No liability was found against Strong.
Stephanie Ann Mitterhoff
This report is based on information that was provided by plaintiff’s counsel. Defense counsel did not respond to the reporter’s phone calls. Township of Irvington was not asked to contribute.