Officer sues, alleges negligence
Published 12:41 am Thursday, October 6, 2011
A Washington police officer is seeking a judgment of at least $10,000, citing negligence that resulted in her being injured when she fell on a fire escape while helping investigate a fatal fall from that fire escape Sept. 7, 2009.
Cathy Fox, an administrative sergeant with the Washington Police Department, filed her lawsuit against the estate of Gary Lee Tomasulo, Marie Tomasulo (his widow) and PGML, LLC, a corporation, whose registered agent is Marie Tomasulo.
The lawsuit, which sought a jury trial, stems from the Labor Day 2009 death of Gary Tomasulo, who died as a result of a fall from a fire escape on a building he owned at 217 W. Main St., Washington.
The defendants deny any negligence on their parts.
Superior Court Judge Wayland Sermons Jr. signed an order sending the case to mediation for a possible settlement. If a settlement cannot be worked out, the case is tentatively set for trial May 21, 2012.
Fox’s complaint alleges the defendants are negligent because a slick, enamel-based paint without any traction of grit additive was used when the fire-escape stairs were repainted before the accident. The complaint also contends the fire escape stairs were under exclusive control of one or more of the defendants on Labor Day 2009.
“After conducting part of her investigation from the third floor landing of the fire escape stairs on the Premises, Plaintiff carefully began her descent down the fire escape stairs, holding onto the rail, when she slipped and fell part way down to the second floor,” reads the complaint. “Upon information and belief the Defendants, their employees, agents, officers, directors, and servants, knew of should have known through the exercise of reasonable care and experience that painting the fire escape stairs with slick enamel paint without traction or grit additive was unsafe.”
The lawsuit alleges that as a result of the defendants’ negligence, Fox suffered “severe, painful and permanent injuries, including injuries that required surgical treatment.” The complaint also contents Fox incurred expenses to treat her injuries, loss of income and loss of economic opportunity, “great pain and suffering” in the performance of her daily duties and at least one permanent injury.
In their response to the complaint, the defendants, by way of a second defense, note that Gary Tomasulo slipped and fell to his death from the fire escape. They also contend that although Fox was aware that Tomasulo fell from the fire escape, she “undertook to go onto the fire escape stairs.”
The defendants also contend that if they were negligent, which they explicitly deny, Fox was also negligent in that she “voluntarily and knowingly climbed the staircase, which she knew or should have known was wet and slippery.”
The defendants asked the court that Fox recover nothing on her claim.
Fox’s attorney, Adrienne S. Blocker, with the Durham branch of the Law Offices of James Scott Farrin, declined to comment on the lawsuit because it’s an active case.
On Wednesday, a message left for John R. Kincaid, the defendants’ attorney, was not returned by the deadline for today’s edition. Kincaid is with the law firm of Haywood, Denny & Miller in Durham.
The file number for the case is 11 CVS 745. The case file is in the civil division of Beaufort County Superior Court.