BM&S Partner James J. Lofrese Obtains Summary Judgment Dismissal of All Claims Against Adult Day Care Facility in Premises Case

Black Marjieh & Sanford LLP is pleased to announce that Partner James J. Lofrese recently secured summary judgment dismissal of all claims asserted against the firm’s client, an adult day care rehabilitation facility serving members with cognitive impairments and brain injuries.

The plaintiff, a member of the day care program with dementia-related cognitive issues, tripped and fell on an exterior walkway leading to the facility’s entrance. The plaintiff, who was nonverbal, did not testify. The only eyewitness testified that she had turned her back momentarily, and by the time she turned back around, the plaintiff was already in the process of tripping over and across a low retaining wall separating the walkway from a lower patio area.

The plaintiff’s attorneys argued that the low retaining wall created optical confusion and otherwise rendered the premises unreasonably dangerous. Mr. Lofrese’s motion focused on the fact that the witness did not see the plaintiff’s foot strike the wall and could not identify what caused the plaintiff to fall, making it speculative to assume that the retaining wall caused the accident rather than the plaintiff simply losing balance for some other reason.

Mr. Lofrese also submitted the report of a professional engineer who concluded that the walkway and retaining wall complied with all applicable building code regulations and did not otherwise constitute an unreasonably dangerous premises condition. In its decision, the Court dismissed all claims against the day care facility and its employees, as well as against the premises owners.