On December 23, 2004, Leonard Cedano was crossing the street at Clifford Place and Jerome Avenue in the Bronx. The 54 year old livery cab driver was in the crosswalk when he stepped onto a manhole cover that caused him to fall because it was about three inches lower than street level.
Workers repairing a manhole cover in the street:
Cedano sued claiming that several months earlier the city had performed some repairs at the site and was negligent in that the manhole was left in a dangerous condition.
On November 25, 2008, after a three day trial, a Bronx County jury ruled in plaintiff’s favor finding the city 100% at fault for the accident and awarding pain and suffering damages for Mr. Cedano’s wrist injuries in the sum of $550,000 ($250,000 past – 4 years, $300,000 future – 21 years).
The city appealed but both the liability and damages verdicts have been affirmed in Cedano v. City of New York (1st Dept. 2012).
The decision fails to state the nature of plaintiff’s injuries. We have uncovered the injury details:
- displaced right distal radius fracture
- initially treated with closed reduction, a cast and a splint but open reduction internal fixation surgery ("ORIF") was required two weeks later in which a metal plate and five screws were inserted
- three months of physical therapy
- development of arthritis in the small joint between the ulna and the radius
- continuing complaints of pain and reduced right hand grip and pinch strength
With severe arthritis, the joint space narrows down to bone-on-bone after the cartilage wears down.
The plaintiff’s damages case was supported by testimony from orthopedic surgeon Gabriel Dassa, M.D.; the defense did not call a doctor to testify.
On appeal, the defendant argued that prior case law simply did not justify $550,000 for pain and suffering in this case. The appellate court decision cites no cases to justify or explain its affirmance of the damages award.
Here are the three relevant cases (discussed by the parties in their post-trial arguments) that deal with the propriety of pain and suffering verdict amounts for wrist injuries:
- Lantigua v. 700 W.178th Street Assoc. (1st Dept. 2006) – $400,000 ($200,000 past – 5 years, $200,000 future – 20 years) affirmed for a woman with an intra-articular distal radius fracture requiring two surgeries – ORIF and hardware removal.
- Hayes v. Normandie (1st Dept. 2003) – $985,000 ($235,000 past – 4 years, $750,000 future – 20 years) affirmed for a 57 year old man with a displaced fracture of his distal radius, a fractured tip of the styloid process of his ulna and a shoulder injury. He underwent four operations to his wrist and fingers. We previously discussed this case, here.
- Diouf v. New York City Transit Authority (1st Dept. 2010) – $1,000,000 ($200,000 past – 4 1/2 years, $800,000 future – 20 years) affirmed for a 55 year old man with bilateral distal radius fractures requiring external fixation surgeries to one wrist and resulting in post-traumatic arthritis in both wrists. We previously discussed this case, here.
- plaintiff returned to work as a cab driver one month after the accident
- plaintiff’s attorney asked the jury to award $1,000,000 for pain and suffering – $500,000 past and $500,000 future; the defendant’s attorney did not mention damages in his summation
- the defendant denied any liability arguing that plaintiff’s accident was due to his own inattentiveness and rainy conditions and, in any event, that the city neither created the defect nor did it have prior notice of any defect