Port Jervis Infant Receives $500,000 Settlement

Prior results do not guarantee a similar outcome.

PREMISES LIABILITY

SETTLEMENT: $500,000, prior to the scheduled start of the damages trial.

Dalen Palma, an infant by his guardian ad litem, Peter G. Botti v. Gerald DiMarco and Susan DiMarco

Feb. 1

Orange Supreme

JUSTICE: Elaine M. Slobod

Richard G. Corde of Boeggeman, George, Hodges & Corde, White Plains, for defense.

FACTS AND ALLEGATIONS: On May 15, 2000, Dalen Palma, 2, was visiting his grandparents’ home in Port Jervis, in the town of Deerpark. During the course of the day, Dalen’s mother and grandmother, Susan DiMarco, became involved in an argument. Dalen was unattended during the argument. When the women realized the child was not in the room, they discovered Dalen floating in the home’s above-ground backyard swimming pool. He was not breathing. Ms. DiMarco performed CPR and Dalen’s breathing resumed, but it was subsequently determined he had sustained a hypoxic event that resulted in brain damage.

Dalen’s guardian ad litem, Peter Botti, an attorney, sued Ms. DiMarco and her husband, Gerald DiMarco. Plaintiff’s counsel argued the pool and its surrounding wooden deck violated building codes and were unsafe. He contended the DiMarcos never obtained a certificate of occupancy for the deck. Evidence established that Deerpark sent the DiMarcos a letter, dated Oct. 8, 1998, explaining that a certificate of occupancy was needed.

The plaintiff’s building-inspection expert testified that the backyard’s gate violated New York State Uniform Fire Protection and Building Code §720.1. He noted the code specified gates must be at least 40 inches high if they protect entry to the pool. He contended that the DiMarcos’ gate was 34 inches high. He also testified that the gate lacked a self-closing, self-latching lock with a key, combination or other childproof device.

The DiMarcos contended that the pool and deck were reasonably safe. They argued that the pool was surrounded by a chain-ink fence and that the French doors leading from the house to the deck were equipped with a dead-bolt lock that was four feet above the ground. They also argued that the pool gate was equipped with an eye-hook latch that was four feet above the ground. They added that their daughter was solely negligent because she did not maintain constant observation of her son.

Mr. DiMarco acknowledged that he never scheduled an observation of the deck- a step necessary to procurement of a certificate of occupancy.

The jury found that the DiMarcos were negligent in the maintenance of their property and that their negligence was a substantial causal factor in Dalen’s injuries. A settlement was reached. Dalen will receive the $500,000 limit of the DiMarcos’ insurance policy.