The Middletown Press (Middletown, CT)
CT man wins $9M verdict after injury at Portland water park
After nearly seven years of litigation, a Connecticut water park conceded last month that it was legally responsible for a deep gash a patron suffered in his left foot in the summer of 2016 — but then took the case to trial anyway over how much compensation he deserved.
The outcome was a $9 million jury verdict on May 3 in state Superior Court in Middletown for the injured park patron, Charles Beyer, 46, a private aircraft mechanic from the Hudson Valley village of Washingtonville, N.Y.
Beyer’s lawyers say interest will bring the total he is owed to at least $13 million.
Lawyers Christopher M. Vossler and Rachel
M. Bradford, who represent the defendant, Brownstone Exploration & Discovery Park LLC, did not respond to requests for comment on the verdict.
Beyer suffered the injury at the Portland park, which does business
as the Brownstone Adventure Sports Park, on Aug. 6, 2016. He was using “lily pads,” a series of 5-foot, floating soft foam disks that people try to make their way across.
They frequently fall in the water, which is a lot of what makes it fun, according to lawyer Kenneth G. Bartlett, of Madison, who represented Beyer through much of the case, but turned it over in January to Andrew Garza at the Connecticut Trial Firm LLC in Glastonbury.
Beyer, then 38, slipped off the fifth disk. He hit something sharp underwater and came out with the deep cut on his left foot and ankle, which ultimately caused nerve damage, extensive scarring, swelling and infection, according to allegations in the most recent version of his complaint, all admitted by the water park.
What caused the injury?
Bartlett theorizes that the sharp object was either the chain con
necting the plastic pad to the floor of the former brownstone quarry or a “carabiner,” a clip that holds one chain to another or to the pad.
It took some detective work by Bartlett to develop a theory as to what went wrong. In a deposition, he said park owner Sean Hayes recounted that he had bought the lily pads for $300 at a former Waterbury water park’s bankruptcy sale, but added that he did not know who had manufactured them.
Examining the pads did not help because chlorine had dissolved any writing on them, Bartlett explained.
In digging through old permits in a government
office, Bartlett said, he eventually discovered the name of the Colorado company that made the lily pads. Bartlett eventually reached the developer of the product who said the chains connecting the pads to the floor of a pool were supposed to be covered with a plastic sheath and were improperly and dangerously installed at Brownstone, court documents showed.
The lily pads had been in place at Brownstone for only 30 to 32 days when Beyer was injured, Bartlett said. He quoted one park employee as saying there had already been one injury on the activity, although he said others denied it, according to the documents.
Bartlett filed the lawsuit in May 2017, about nine months after Beyer
was injured, but its progress was later delayed by the COVID-19 pandemic.
The suit included no claim for lost wages because the owner of the private plane Beyer services had kept him on the payroll even as he went through treatments for his injury, Bartlett said.
‘Complex regional pain syndrome’
After the park conceded that it was liable for Beyer’s injuries, the sole issue in the trial was “non-economic damages,” compensation for his past and future pain and the limitations it places on his activities.
Garza, who tried the case with lawyer Alexa Mahony, said Beyer admitted he has returned to skiing. But where Beyer once did flips off
40-foot cliffs, he is now limited to about half a day on the “bunny slope” with his children, Garza
said.
Beyer’s switch in lawyers came after Bartlett had a medical problem of his own, knee surgery that made it daunting to contemplate being on his feet through what looked like it might be a long trial.
As to the amount of compensation, the major medical issue was whether Beyer suffers from “complex regional pain syndrome of the lower left extremity,” which would result in progressively worsening pain, or whether his chronic pain could be expected to be stable, Garza explained.
He presented his medical evidence through the records of Beyer’s doctors and called only the defense expert to testify before the jury. But he stressed
that the defense expert had never made a diagnosis of complex regional pain syndrome when hired to diagnose a patient for a party being sued — only in his own medical practice.
The water park had a $1 million insurance policy with an organization known as Certain Underwriters at Lloyd’s, London, but litigation expenses had consumed $250,000 of that amount.
Bartlett said Garza offered to settle the case before trial for the remaining $750,000, but the defense refused.
The verdict leaves more than $12 million in uncovered liability. But, if the full amount is not paid, Garza explained, Connecticut law allows the plaintiff to sue the insurer over its failure to settle the case.