Civil and Family Forensics Helps Settle $2.75m Case

RECONSTRUCTING THE DEADLY STEPS

by Thomas Scheffey
The Connecticut Law Tribune
6/3/2002

Civil and Family FORENSICS HELPS SETTLE $2.75M CASE

Law Tribune Staff Writer

Last fall, Stamford lawyer Earnest F. Teitell took on a case that seemed like an uphill battle against motherhood, the flag and apple pie.

In 1995, 18-month-old Zachary Roloson was being carried up a 15-step flight of concrete stairs by a 70-year-old woman employee at the Ansonia Salvation Army. There were no witnesses when Gladys Speicher fell to her death, crashing the back of her skull onto the fifth step. Zachary suffered brain damage.

His parents, who had just taken over running the facility, were initially named as defendants, on a negligent entrustment theory. With his grandparents as his official legal guardians, Zachary sued his mother and father, as agents of the famed charity.

After Trumbull lawyer Richard G. Kasack Jr. transferred the matter to Stamford's Silver, Golub & Teitell, the new firm's first step was to drop all counts against the parents, reinstating them as his legal guardians.

Not only is the doctrine of family immunity an imposing obstacle, Teitell said, he and co-counsel Paul A. Slager decided the parents didn't appear negligent.

Plaintiff's Nightmare

A key defense witnesses was Major George Polarek, second in command for the Salvation Army division supervising Ansonia, who arrived for depositions in full dress uniform, medals and insignia. Like the other Salvation Army witnesses, Polarek was pleasant and imposing. But through extensive discovery, an internal letter turned up from a contractor asked in 2000 to bid on repairs to the stairs, after employees became concerned about their irregularity, and Slager got Polarek to concede he was aware of long-standing defects.

More obstacles loomed. The Salvation Army, represented by the New York firm of Rubin, Fiorella & Friedman, contended Speicher had a seizure, and that uneven treads and riser heights were not a cause. Speicher was taking anti-seizure medication prescribed by her neurologist and had a known seizure just weeks before her death.

In ordinary trip and fall cases, said Teitell, “Usually you have a plaintiff at least that can testify what they fell on, how it happened.” But Speicher's head hit the fifth step, with enough force to spew skull and brain tissue. Baby Zachary's skull was fractured and swelled alarmingly. Quick surgery saved his life, but piecing together how the incident occurred took 33 depositions and five expert witnesses in a five-month research effort.

Army Engineer

The Salvation Army's civil engineer, Harlan Fair, said that despite inconsistent heights of the risers and slopes of the tread, he concluded the fall was caused by Speicher losing her balance, presumably due to a seizure. He said he didn't know and didn't need to know the particulars of Zachary's injuries,. under questioning by Slager.

Similarly, when interrogated by Teitell, Dr. Mark Taff, the defense's forensic pathologist, said he hadn't reviewed the infant's injuries. He didn't think it was possible to tell whether the woman had a tight grip on the child. But Taff conceded that if she held the child throughout her fall, it would make it unlikely she was having a seizure.

For Zachary's team, building and safety expert Jake Pauls was deposed next. He detailed a range of defects in stair geometry, glare and level, and noted that, with the possible exception of cigarettes, no other legal product besides stairs costs the public health system ten times the cost to produce them.

Dr. John Adams, of Maryland, was a forensic pathologist for the plaintiffs. He testified that Gladys Speicher's jaw was broken by the force of Zachary's skull, and that she was holding Zachary up until the point of impact. This was critical to the plaintiff's argument that defects in the stairs, not health problems of Gladys Speicher, caused the fall.

Biomechanical engineering expert John G. Perry, of Van Nuys, California, testified with conviction that Zachary's injuries were caused by Speicher's jaw impacting his skull, and that she gripped Zachary until the moment her head contacted the steps, exercising voluntary muscular control throughout.

He also explained in a May 8 deposition in California, that she was unable to properly plant her foot on the 13th step due to the slope of the tread which also had an irregular crown. Her center of gravity, holding the child, didn't continue forward past her foot, and she fell straight backwards “like a pendulum.” She reflexively took a step backwards and gripped Zachary tighter in the fatal fall.

In light of the three experts' reconstruction, a case that five months before appeared to have no hope of settling went into negotiations after the third juror was picked, Teitell said. A settlement of $2.75 million was achieved.

Zachary, now seven, attends special education classes by bus. He had repeatedly asked his mother about a kitten—an impossible in their no-pets apartment. Teitell conveyed news of the unexpected settlement to Denise Roloson with a simple message: “Tell Zachary he can have a cat.”