Appeals Court Orders Increase in Pain and Suffering Award for Man who Fell from Subway Platform

By John Hochfelder

on December 15, 2011On October 3, 2003, Clyde Davison stumbled and fell from the subway platform onto the tracks at Franklin Avenue in Brooklyn. Luckily for him, there was no train in the area and a police officer responded quickly finding the 50 year old man face down near the third rail apparently intoxicated.
Within a few minutes, before Davison could be moved, a train entered the station at about 20 miles per hour and its contact shoe clipped Davison severely injuring him causing fractures of his clavicle and scapula.

Here is a typical clavicle fracture:











In the ensuing lawsuit, the transit authority was found 70% at fault for plaintiff’s injuries and Davison was charged with 30% of the fault.
The trial judge disagreed and dismissed the case reasoning that plaintiff was the sole proximate cause of his state of intoxication and that he unreasonably and unforeseeably disregarded the police officer’s instructions to get up and away from the tracks. On appeal, though, in Davison v. New York City Transit Authority (2d Dept. 2009), the 70/30 split was reinstated.
Finally, in 2010, a damages only trial was held.
The jury heard testimony from plaintiff and doctors for both sides describing the nature of Davison’s clavicle and scapula injuries and their effect on his life. They rendered a pain and suffering verdict in the sum of $216,000 ($150,000 past – 6 years, $66,000 future – 22 years).
The plaintiff appealed, this time claiming that the jury’s award was inadequate and should be increased.
In Davison v. New York City Transit Authority (2d Dept. 2011), the appellate court has now agreed with plaintiff again and ordered an increase in his award from $216,000 to $450,000 ($275,000 past, $175,000 future).
The net award to plaintiff, in view of his 30% comparative negligence, is $315,000.
The decision merely mentioned that plaintiff sustained fractures of his clavicle and scapula. Here are the details of Davison’s injuries:

• comminuted fracture of the left clavicle requiring surgery to repair with a steel plate and screws
• comminuted fracture of the left scapula requiring surgery to repair with two steel plates and screws
• 27 day hospitalization
• outpatient hospital physical therapy for two months
• severely restricted movement and pain in the left arm with inability to perform normal household chores.

X-Ray showing the scapula after surgery like the one underwent by Mr. Davison:





The defense argued that the jury’s award was adequate because plaintiff’s fractures had healed, he was not suffering from any significant disability, he had no medical treatment for his injuries since August 2004 and any pain he still suffered from at trial was from prior unrelated injuries (of which there were many, including eight motor vehicle accidents and one that required neck surgery).
We’ve discussed clavicle and scapula injuries before, here and here.
Inside Information:

• Defendant had offered $250,000 to settle the case before beginning the trial (a pretty good approximation of how the case would end up).
• At the damages trial, plaintiff was cross-examined concerning his alcohol use (he admitted he had a history of chronic alcoholism) and his drug use, matters objected to at trial and on appeal but ultimately not addressed by the appellate court.

http://www.newyorkinjurycasesblog.com/2011/12/articles/clavicle-injuries/appeals-court-orders-increase-in-pain-and-suffering-award-for-man-who-fell-from-subway-platform/



POSTED BY ATTORNEY RENE G. GARCIA
Some of our clients have suffered these kinds of injuries due to a serious accident or malpractice. The Garcia Law Firm, P.C. was able to successfully handle these types of cases. For a free consultation please call us at 1-866- SCAFFOLD or 212-725-1313.