Appellate Court Affirms Trial Judge’s Increased Evaluation of Pain and Suffering Award in Laborer’s Case Alleging Ankle and Shoulder Injuries

By John Hochfelder

On March 24, 2007, Fitzroy Burnett was working for the transit authority as part of a track removal and replacement project in the subway tunnel at the 155th Street station in Manhattan. Burnett was attempting to remove shoring stuck in the concrete skeletonized track. He slipped and fell backwards onto a track due to the presence of water that had been allowed to accumulate in his work area. As a result, the 51 year old struck his head, shoulder and back and was unable to get up due to severe ankle pain. Burnett was immediately taken by ambulance to the local hospital.

Burnett sued the City of New York arguing that, under Labor Law 241(6), it was liable as the owner of a construction site that was unsafe due to the accumulated water. A Manhattan jury concluded that each side was equally at fault for the accident and awarded pain and suffering damages – before apportionment – in the sum of $250,000 ($175,000 past – four years, $75,000 future – one year).
The defendant’s post-trial motion to have the verdict set aside on liability grounds was denied while the plaintiff’s cross-motion to increase the damages award  was granted. The judge determined that reasonable compensation for plaintiff’s pain and suffering was $300,000 ($210,000 past, $90,000 future), after the 50-50 liability split.
In Burnett v. City of New York (1st Dept. 2013), the appellate court affirmed the liability apportionment as well as the trial judge’s increase of the pain and suffering damages award from $250,000 pre-apportionment to $300,000 post-apportionment (plus $200,000 for economic damages). Thus, the actual amount awarded to plaintiff for all damages stands at $500,000.
At the hospital immediately after his accident, Burnett was diagnosed with a fractured ankle. He was treated and released with a soft cast.
Within three days of the accident, Burnett ended up in the hospital again after he suffered a protracted grand mal seizure at home. His treating neurologist testified that the seizure was caused by head trauma from the accident and his orthopedic surgeon testified that convulsive movements during the seizure seriously exacerbated a non-displaced shoulder fracture caused in the accident three days earlier. This testimony – unrebutted by any contrary medical testimony – was the major factor in the judicial determinations that the jury’s pain and suffering awards were inadequate.
Here, then, are the injury details:

• lateral malleolus ankle fracture reduced via open reduction internal fixation with plates and screws
• four part comminuted humerus fracture and shoulder dislocation requiring hemiarthoplastic prosthetic replacement surgery
• shoulder labral and rotator cuff tears surgically repaired
• unable to walk for several months without using a cane; as of trial, ankle still stiff and walking difficult
• extensive physical therapy for ankle and shoulder for two years
• as of trial, shoulder pain was constant with movement, range of motion was severely restricted and shoulder function was diminished by 50%
• unable to enjoy cricket, play sports with his son or do his regular home handyman chores
• post-traumatic seizure disorder requiring lifelong medications

 Inside Information:

• Plaintiff’s wife claimed loss of consortium damages but the jury declined to award her any damages at all.
• Plaintiff returned to work six months after the accident (in an office position as a timekeeper, not as a trackworker) at the same salary he’d been receiving before.
• In effect, without explicitly so stating, the judges evaluated plaintiff’s total damages (pain and suffering plus economic) at $1,000,000. That is the only conclusion one can logically draw since the courts affirmed the 50-50 liability split and made clear that plaintiff was to receive after apportionment the sum of $500,000 for his damages.
• It does not appear that there was any evidence to support the trial  judge’s decision to increase plaintiff’s past and future loss of earnings awards from $81,500 (one-half of the jury award of $163,000) to $197,000 (equal to $394,000 before apportionment) and  the appellate court did not even address that issue. Perhaps the appellate court simply agreed with the $500,000 overall  net award to plaintiff ordered by the trial judge and had no interest in separately discussing the different items of damages.
• Since there was no evidentiary basis to affirm the trial judge’s increase of the economic damages awards, then one must conclude that the appellate court evaluated plaintiff’s pain and suffering damages at $919,000 ($1,000,000, representing the overall $500,000 award before apportionment, less $81,000, representingone-half of the past and future loss of earnings awards). If so, then $919,000 represents the minimum found by the court to be permissible for pain and suffering damages in this case.

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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.

State Negligent in Causing Death but No Damages Allowed By John Hochfelder on June 22, 2013 Posted in Wrongful Death Cheryl Thurston lived in a group home facility operated by New York State’s Office for People with Developmental Disabilities. The residents at 8 Hilltop Drive in Pittsford all had developmental disabilities and each was subject to varying degrees of supervision with regard to things like mobility and safety. Ms. Thurston was mentally and physically handicapped and she had a seizure disorder. There was a written plan in effect prepared by the state that specified, among other things, that she required one on one supervision in the bathtub. Unfortunately, on August 30, 2008, Ms. Thurston was left completely unattended for several minutes sitting on the toilet while water was running for her bath. When her attendant returned to the room, she found Ms. Thurston unresponsive in the bathtub. Cheryl had suffered a seizure and then drowned. She was rushed to the hospital but never regained consciousness and was pronounced dead 14 hours later. Under New York law – Estates, Powers and Trusts Law Section 5-4.3 - these are the two claims that may be brought to recover damages for a person’s death: the survivorship claim, which belongs to the estate for the decedent’s pain and suffering prior to death and the wrongful death claim, which belongs to the distributees (i.e., the heirs) who have suffered a pecuniary loss by reason of the death In Thurston v. State of New York (Court of Claims 2013), both claims were dismissed by the judge before trial because (a) there was no proof that Ms. Thurston suffered after she sustained the seizure which rendered her unconscious and (b) she had not been employed and there was no one who incurred an economic loss due to her death. The judge, Renee Forgensi Minarik, was clearly troubled by her decision finding it “repugnant” that she had to enforce New York’s wrongful death law that “places no intrinsic value on human life.” She called upon the legislature “to address this fundamental injustice” in the statute. Inside Information: Claimant’s counsel appears to have been aware of the likely dismissal of the case when he argued on the motion that “the facts in this case cry out for an expansionist interpretation” of the statute. Any such expansion now awaits a successful appeal (unlikely) or action by the state legislature (sought repeatedly by advocates such as the New York State Trial Lawyers Association). Cheryl’s sister, Laurie, submitted an emotional affidavit attempting to convince the judge that there was an economic loss flowing from Cheryl’s death. Tweet Like Email LinkedIn Comments Tags: Conscious Pain and Suffering, drowning, Seizures Pain and Suffering Award Affirmed in Slip and Fall Case Despite Plaintiff’s Active Lifestyle

By John Hochfelder

On September 2, 2009, Yvan Lemoine slipped and fell down an interior stairwell at the premises of Planet Fitness in Astoria.






Yvan, then 28 years old, had been walking from the second to the first floor when wet, just-mopped stairs caused him to slip and fall down 14 stairs.
He had intense pain in his back that radiated upward and an ambulance was called. A neck brace was applied by a paramedic and Yvan was placed on a stretcher and taken to the local hospital emergency room. He was treated and released within a few hours with a prescription for narcotic pain medication and advice to follow up with additional medical help within a day or two.
A lawsuit was commenced later in 2009 and it came to trial in Queens in November 2011. The jury returned a verdict of full liability against the premises owner and then awarded Yvan pain and suffering damages in the sum of $160,000 ($20,000 past – two years, $140,000 future – 35 years).
Despite the defendant’s argument that it was excessive, the verdict has been affirmed in Lemoine v. Steinway Fitness, LLC (2d Dept. 2013).
Here are the injury details (none of which were disclosed in the appellate court decision):

• herniated disc at C5-C6 in contact with the ventral spinal cord
• bulging discs at L4-L5 and L5-S1
• unable to perform pre-accident activities without pain in neck, shoulders and back

Plaintiff’s medical treatment for his injuries consisted only of the emergency room visit and follow-up care with a chiropractor starting two days later and lasting for two years (tapering off to once a month in the second year).
The defense contended that plaintiff’s very active lifestyle after the accident belied his claim that he was seriously injured and in great pain. Prior to the accident, plaintiff had been extremely active – horseback riding, swimming, snowboarding and skiing. Afterwards, he was still able to engage in these activities, however, he testified that when he did so it was always in great pain.
Inside Information :

• Plaintiff was employed as a chef prior to the accident and was unable to do his usual work for 30 days due to his injuries. In 2012, though, he competed on the reality television series Food Network Star and after 11 weeks, on July 12, 2012, Yvan was named a top three finalist.
• Evidentiary issues arose regarding the admissibility of photographs and statements on plaintiff’s Facebook page; however, most of the information pre-dated the accident and the trial judge (upheld on appeal) excluded some as prejudicial, cumulative or because the defense failed to disclose its intention to use it. Plaintiff testified credibly (and charismatically) that he was trying to resume his life and activities even though he could do so only with much pain.
• Plaintiff’s pre-trial settlement demand was $100,000 against no offer. In summation, his attorney asked the jury to award $75,000 for pain and suffering damages but the jury awarded plaintff $85,000 more than requested.
  
  http://www.newyorkinjurycasesblog.com
  
  
  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.