Partners Joseph Salvo and Adam Hiller secured a defense verdict for a firm client, a competitive fitness company with affiliates throughout the United States, in a premises liability case involving serious orthopedic injuries, including two surgeries.
The plaintiff, a special operations FDNY firefighter, alleges he was involved in a group “workout of the day” consisting of various high intensity training exercises and a “tire flip” at a facility owned and maintained by the firm’s client. The tire flip activity required members to flip a tractor trailer tire in the parking lot outside of the facility. The tires weighed anywhere between 350 and 530 pounds. Each member (and sometimes two members working together) would flip a tire once before proceeding with the other timed interval exercises.
After having successfully flipped the tire twice, the plaintiff proceeded inside the facility to perform the other interval exercises Once completed, he ran back outside to the parking lot and stopped directly in the line of a tire being flipped by two other members, claiming that he was just waiting on another member to finish using the tire he wanted to flip. The tire being flipped by the other members struck his left foot, resulting in a Lisfranc fracture and a dislocation of the left foot. He ultimately had surgery, which included the implanting of multiple screws. He subsequently underwent a second surgery to have the screws removed. He missed about nine months of work as a result.
Prior to the start of trial, the plaintiff made a motion to unify the trial, knowing the issues he was facing on liability, included a series of text messages with our client stating that he “wasn’t paying attention.” We were able to demonstrate to the judge that there was no dispute how the incident occurred and thus no evidence that plaintiff’s injures were probative in determining liability. The judge ultimately agreed and the trial remained bifurcated.
Once the plaintiff took the stand, Salvo was able to get him to admit that he was not paying attention to other members in the class flipping tires in the parking lot and did not bother to look to his right or left upon exiting the facility just prior to the incident. The plaintiff had no other option at trial after the deposition testimony secured by Hiller locked him into these admissions. Through both deposition and trial testimony, the firm's team was able to detail the extensive training of the plaintiff as a special operations FDNY firefighter and establish that it was his job to assess risk on a daily basis, which became particularly impactful to the jury in finding that the plaintiff appreciated the risk inherent in the tire flip exercise. Salvo was also able to completely discredit the plaintiff’s expert who admitted to not having any certifications or experience in this particular high interval training exercise regimen.
The plaintiff maintained a demand of $950,000 for nearly the entirety of the case, until reducing the demand to $650,000 on the eve of trial. Our highest offer was $25,000 and the plaintiff refused to further negotiate. After twenty minutes of deliberation, the jury returned a defense verdict.