Steven Sundook (Ft. Myers, FL) (Premises Liability) obtained a Defense Verdict in the case of Gino Perri v Ron A. Beecroft in Lee County Circuit Court June 7-10, 2022.
Gino Perri, a 51 year old retired postmaster from northern New Jersey, rode his bicycle onto the premises of JetBlue Park, also known as Fenway South, on December 22, 2017. He and his wife rode their bikes onto freshly poured wet cement squares on a walkway just outside the spring training baseball stadium. He claimed that he rode across the wet cement and abruptly stopped when his bike hit the lip of a dry square on the opposite side of the wet one he had just ridden across. He claimed this caused his neck to “jerk” forward. He testified that he had ridden his bicycle in that area without incident 200 times in the previous couple of years, since he first moved to Florida from NJ, after retiring from his job.
He retired early due to injuries from on-the-job workers’ compensation accidents, including slipping on ice, lifting heavy postal trays and an “electrocution” incident in which electricity went from his right hand up his right arm into his chest. He underwent two prior significant lumbar surgeries and had complained of symptoms consistent with carpel tunnel syndrome and/or cervical radiculopathy. He was determined to be permanently and totally disabled prior to moving to Florida. He was actively treating with a pain management doctor at the time of the incident. He was taking narcotic pain medication, but claims he tolerated them well with no side effects.
Plaintiff’s pain management doctor referred him to a neurosurgeon, who concluded he had a cervical radiculopathy and proceeded to perform an anterior cervical discectomy, which relieved some symptoms. After continuous complaints of right hand tingling, pain and numbness, as well as problems gripping and other functional problems with his right hand, a second open posterior multilevel cervical fusion was performed.
Plaintiff claimed he had trouble sleeping, could no longer bike ride, bowl or be intimate with his wife. Our client, Ronald A Beecroft, is a small family-owned contractor. At the time of the incident, the company had had been told by Lee County Parks and Rec that the Park would be closed on the date of the concrete walkway repair. We argued that that the workers on the date of incident had no reason to anticipate the plaintiff’s presence in the area they were working. They did not barricade the area of fresh cement because they were told the park was closed to the public that day.
Plaintiff argued that the area should have been barricaded and that the Plaintiff had no way of knowing the park was closed. The gates to the park were open. There were no cones, barricades, or other indication to him that the park was closed that day. Lee County had been a party defendant but was dropped weeks before trial.
The Plaintiff’s status on the land was a major legal issue. We were able to have the court give instructions that Plaintiff was an uninvited licensee. We had a biomechanical expert to testify about the minimal forces involved in the incident, A CME doctor who testified the surgeries were not related to the bike incident and a Lee County Parks and Rep director, who testified the park was closed and our client was told no members of the public would be present that day.
Plaintiff’s treating doctor admitted in video trial testimony he had not reviewed prior records and attributed cause of surgery to the bike incident only because Plaintiff told him so. He said if there was evidence of similar symptoms prior to the bike incident, that would affect his opinion on causation.
We obtained Plaintiff’s Department of Labor workers’ compensation file fairly close to the trial date. It showed complaints similar to the ones made following the bike incident. There was a Department of Labor IME Plaintiff used to apply to continue his permanent total disability workers’ compensation claim. In the IME report, Plaintiff claimed he was unable to bike or bowl 8 months prior to our bike incident. There were handwritten forms filled out by the plaintiff himself regarding his pain and restrictions 8 months prior to our incident. Plaintiff also claimed he heared a news report that the Red Sox box office would be open, that he checked the schedule on his phone and was excited his beloved NY Mets were on the upcoming 2018 spring training schedule. We checked the 2018 spring schedule, and the Mets were not on the Red Sox Jet Blue spring schedule. Plaintiff did not look good in cross examination.
Plaintiff’s credibility was a big issue for the defense. Plaintiff asked for over $900,000.00 in his closing argument. After 55 minutes the jury reached a verdict for the Defense. We are moving for attorney fees pursuant to a $2,500.00 PFS served in July 2020.