On November 19, 2005, at about 7 p.m., Ernest Lewis, then 13 years old, was on his way home from church walking towards the bus stop at 145th Street and Convent Avenue in Manhattan. He saw a bus ahead and ran along the sidewalk to catch it before the driver pulled away.
Ernest reached the rear of the 60 foot long stopped bus and tapped the side with his hands to alert the driver but as Ernest was going toward the front to get on the bus, he fell under the wheel near the sidewalk, at the middle of the bus. At the same time, the bus began to pull out of the stop and ran over his legs with the right middle tire.
Ernest sustained very significant leg injuries and a lawsuit was brought on his behalf alleging that the bus driver was negligent because he pulled away from the bus stop when it was unsafe to do so.
The jury heard testimony about where Ernest was when the bus moved out, what the driver saw and heard before moving and on March 3, 2011 they returned a verdict finding the driver 100% at fault. They then heard testimony about Ernest’s injuries and awarded him pain and suffering damages in the sum of $6,500,000 ($2,500,000 past – five years, $4,000,000 future – 10 years).
In Lewis v. New York City Transit Authority (1st Dept. 2012) both the liability and damages verdict have been affirmed on appeal.
The decision sets forth that plaintiff sustained an open fracture of his distal fibula and a degloving injury of his ankle and lower leg (the traumatic tearing away of tissue and muscle) resulting in extensive hospitalization, surgeries, arthritic changes and a need for future ankle fusion. Here are the details of plaintiff’s treatment:
- open reduction and internal fixation surgery (with screw and rod through the length of the fibula)
- external fixation applied to right leg for three months
- placement of syndesmotic screw between tibia and fibula
- five irrigation and debridement and plastic surgical procedures for highest grade of severity of tissue loss (including an eight hour surgery to transplant abdominal muscle to his calf and a 400 square centimeter skin graft from his thigh)
- surgery to transplant blood vessels
- total of eight surgical procedures in the three months post-accident
- left ankle casted for six weeks for suspected calcaneus fracture
- hospital in-patient for three and a half weeks, 10 weeks of in-patient physical therapy and 14 months of home care
Plaintiff’s prognosis is poor:
- substantially limited range of motion in all aspects of his right ankle
- arthritis presence indicates the need for ankle replacement or fusion surgery in five years
- permanent scarring on abdomen and leg with dessication (dryer skin caused by lack of any oil producing glands leading to permanent chronic skin cracking and injury susceptibiliy
- inability to walk without limping by the end of many days
- embarrassment and depression
- Plaintiff’s main treating physicians – an orthopedic surgeon and a plastic surgeon – testified on his behalf; however, while the defense had plaintiff examined before trial by three different physicians, no doctor testified for the defense.
- The jury’s award of future pain and suffering damages covered a period of only 10 years even though the judge charged the jury that plaintiff’s life expectancy was 57 years and the testimony of plaintiff’s physicians as to permanency was unchallenged. Plaintiff’s counsel surmised that the jurors must have had some knowledge of the workings of New York’s structured settlement law (CPLR 5041) that limits (i.e., structures in the form of an annuity) future pain and suffering payments to a period of 10 years.