By: Denise M. Champagne//December 10, 2013
By: Denise M. Champagne//December 10, 2013//
A Caledonia man left paralyzed more than five years ago after falling from the second-story window during a house party in Brockport is still fighting to recover damages.
Bryan Parslow, who was an 18-year-old freshman at The College at Brockport in September 2008, is suing more than 20 of his fellow students, the owner of the off-campus fraternity house at 172 Main St. and the local and national chapters of Sigma Alpha Mu Fraternity.
Parslow is represented by Philip M. Gulisano, of the Buffalo law firm Burden, Gulisano & Hickey LLP, who Monday told an Appellate Division panel the 20 residents of the house at the time had a duty to provide a safe environment.
According to court documents, Parslow, who did not live at the house commonly known as “The Roxbury,” attended a party there in early September during his second week of college. Testimony revealed he drank beer, some of which he had brought, and was seen stumbling around before he fell out of an open bathroom window on the second floor. He suffered neck, spinal and other injuries that left him permanently paralyzed from the chest down.
Parslow and his mother Beth, who is also a party in the suit, alleged the window was excessively large, in a dangerous spot in a bathroom and without any window stops or fall protectors. The house was owned by Norman C. Giancursio, doing business as Mr. G. Rentals. Many of its tenants were members of Delta Iota, the local chapter of Sigma Alpha Mu.
Among the issues raised by Gulisano are four basic claims of premises liability, negligent supervision, General Obligations Law and that the national fraternity is liable.
He was arguing against summary judgment for the landlord, tenants and other party goers named in the suit. Six tenants had been granted summary judgment on at least one of the claims, but are still defendants in the suit. The defendants appealed when the case was not dismissed.
Gulisano cross appealed to re-instate a claim against Sigma Alpha Mu that was dropped from the suit by Monroe County Supreme Court Justice Thomas M. Van Strydonck, now retired. In his Oct. 12, 2012 order, Justice Van Strydonck granted in part motions for summary judgment filed by defendants Theodore L. Bilohlavek, Nathan P. Zilak, Steven B. Leake, Kenneth M. Koperda Jr., Karl Smith and Corey Wilson. Justice Van Strydonck found they had only lived in the house for a week or two and dismissed claims against them for premises liability. The case is Parslow v. Leake.
Justice Edward D. Carni said the lease the students signed specifies they were not to make any structural changes.
Gulisano said their duty was in the fact they occupied and had control of the building. He said what was reasonable for the tenants to do are triable issues of facts, but that the tenants did nothing to warn anybody about dangerous conditions and in fact required drunken party guests use the second-story bathroom.
Justice Carni said it seemed a grand step to put the duty on young kids to supervise other kids that are drinking.
Gulisano also has a claim under General Obligations Law Section 11-100, which deals with compensation for injury caused by the intoxication of someone under 21, giving a right of action to recover damages against those who furnish the alcohol.
Justice Erin M. Peradotto questioned whether the law protected someone from the consequences of drinking if they got their own alcohol.
Justice Carni said it does not take away the fact of liability of voluntary drinking, telling Gulisano he wanted the panel to extend the dram shop law (Section 11-101).
Gulisano said the fraternity should also be liable for the damages to Parslow.
Justice Peradotto said the fraternity had said it dissociated itself from the Brockport chapter.
Gulisano alleges it did not do enough; that the chapter remained active and complaints about it continued. He said the national organization let the chapter continue, knowing it was a hazard.
Sigma Alpha Mu Fraternity Inc. was represented by Buffalo attorney Heath J. Szymczak (Jaeckle, Fleischmann & Mugel LLP) who argued the national organization did not know about the party or drinking. He said there was a clear direction in 2005 that the Delta Iota chapter disband, that the national chapter was not a parent authority and that there was no way to argue the students were acting as part of the national chapter.
Giancursio is represented by Joseph A. Matteliano who had submitted his arguments in writing and did not appear. Attorneys for two other defendants also submitted their arguments in writing beforehand.
Several other attorneys appeared on behalf of their individual former tenant defendants. Not all addressed the court.
Michael J. Chmiel, representing Wilson, said Wilson was not at the party or involved in its planning and that he did not know and had not met Parslow. As for the tenants duty to maintain the premises, he argued the house was kept clean and there was no allegation Parslow had slipped and fallen on a dirty floor.
Chmiel also said the terms of the lease prevented the tenants from conducting maintenance on the window.
Alison M. K. Lee, representing Bilohlavek, said Gulisano kept trying to group all of the tenants together, but that her client, also under 21 at the time, never saw Parslow so he never saw any need for supervision. She also said there were specific leases for specific areas of the large house and that liability under General Obligations Law could not be established just by living in the house.
Others testified their clients had never been in the upstairs bathroom and were not aware of the dangerous situation to give a warning notice to anyone. Others said their clients never paid their dues.
Another, who said her client had seen the window, said it was a question of fact whether it was a dangerous condition or not.
One of the attorneys said the landlord had full control of the house and questioned whether any of the tenants had any liability.
Also on the panel were Presiding Justice Henry J. Scudder and Justice Eugene M. Fahey. A decision is expected something early next year.