Court upholds $800K award

Woman injured on trampoline

SARATOGA SPRINGS, N.Y. » The Appellate Division of State Supreme has upheld a 2016 ruling that awarded a woman $800,000 for injuries suffered while playing with her 9-year-old nephew on a trampoline.

Judi DeMarco, 54, now of Las Vegas, required four surgeries after fracturing her foot in a fall at the Clifton Park home of her brother and sister-in-law, Jeffrey DeMarco and his wife, Debra Lambek, in May 2012.

Following a trial in state Supreme Court Saratoga County, she was awarded $220,000 for past pain and suffering and $580,000 for future pain and suffering.

Attorneys for Jeffrey DeMarco and Lambek filed an appeal and arguments were heard last month in Albany.

On Thursday, the Appellate Division upheld the lower court’s ruling.

“We are unpersuaded by defendants’ contention that the $580,000 jury award for future pain and suffering, which covers a period of 29 years, should be set aside as excessive,” the decision says.

Two of Judi DeMarco’s surgeries involved inserting an implant and fusing together certain joints.

“She must walk slowly and with a limp, and is in a constant state of pain,” the decision says. “An orthopedic surgeon who examined plaintiff four years after her injury described her left foot as severely injured and noted that she has developed post-traumatic arthritis in her foot and she suffers from permanent limited mobility as a result of the fusion.”

The doctor says her “left foot will never function normally, she will continue to experience the same level of pain, if not worse pain, in the future” and additional surgeries are likely, court documents say.

Judi DeMarco, an attorney, was visiting her brother’s home when the accident occurred. She was living in New York City at the time.

In the original court case, the jury determined that the home owners, Jeffrey DeMarco and Lambek, were negligent for lack of supervision. The child had been told not to “double-bounce” on the trampoline, which creates a hard landing, but he allegedly did so anyway.

Judi DeMarco was thrown off balance and the trampoline mat struck her with sufficient force to fracture a number of bones in her left foot, court documents say.

On appeal, the defendants’ attorney, Marshall Sweetbaum, of

Nassau County, argued that there was an assumption of risk inherent with Judi DeMarco’s decision to use to the trampoline. Appellate Division justices disagreed.

“I’m very surprised, more disappointed than surprised,” Sweetbaum said.

Sweetbaum said he plans to recommend taking the case to the state’s highest court, the Court of Appeals. He is representing Jeffrey DeMarco and Lambek, but his client is their insurer, Allstate, which is paying for legal expenses, Sweetbaum said.

“They’re (Jeffrey DeMarco and Lambek) fully covered, he said.

Judi DeMarco is represented by the firm O’Connell and Aronowitz, with offices in Saratoga Springs. Arguments before the Appellate Division were made by attorney Paul Feigenbaum.