On September 15, 2011, Arvella Floyd was showering in the bathroom of her apartment in Brooklyn when the hot water knob and spindle fell and out of the shower wall onto her foot, causing hot water to come out at her “full blast.”
As a result, Ms. Floyd (then 61 years old) fell in the bathtub sustaining injuries to her wrist.
In her ensuing lawsuit against the owner of the premises and the managing agent, plaintiff and her daughter testified that defendants had prior notice about pre-existing problems with the hot water knob falling off and that the superintendent had made inadequate repairs.
The Kings County jury found the defendants fully at fault for the accident and plaintiff’s injuries.
After a trial on damages, the jury awarded plaintiff pain and suffering damages in the sum of $1,075,000 ($275,000 past – three years, $800,000 future – 15 years).
In Floyd v. 1710 Realty, LLC (2d Dept. 2016), the liability verdict has been affirmed but the court ordered a reduction of the future pain and suffering damages award from $800,000 to $500,000.
Here are the injury details:
- emergency room treatment on the day of the accident – diagnosed with a displaced extra-articular distal radius fracture, treated with closed reduction and casted for several weeks
- open reduction internal fixation surgery on 10/12/11: implantation of metal plate with seven screws
- new cast for eight more weeks
- additional surgery on 8/15/12: removal of painful and protruding hardware
- mild carpal tunnel syndrome
- left median nerve neuropathy
- hypertrophic (keloid) scar at surgery site three and a half inches long
- restricted range of motion, especially as to extension (30 degrees with normal being 70) and flexion (40 degrees with normal being 80)
- continuing pain for which plaintiff takes Gabapentin (a narcotic pain reliever), diminished grip strength, swelling, numbness, sensitivity over her thumb and tingling in her hand
- reliance upon daughter for many activities of daily living such as shopping, cleaning and cooking
Plaintiff’s orthopedic surgery expert, Drew Stein, M.D., testified that in his opinion plaintiff (a) had a permanent 60% loss of use of motion in her wrist, (b) had developed left median nerve neuropathy, per EMG test results, for which carpal tunnel release surgery was indicated and (c) will develop arthritis in her wrist joint in the future for which a wrist fusion surgery would be indicated.
Defendant’s orthopedic surgery expert, Jay Nathan, M.D. testified that in his opinion plaintiff had some loss of range of motion in her wrist but there was no nerve injury or evidence of carpal tunnel syndrome and plaintiff will not need any additional surgery in the future.
In addition to pain and suffering, the jury also awarded damages for medical expenses in the sum of $825,000 ($75,000 past, $750,000 future). The parties agreed after the trial to reduce that aspect of the verdict to $185,000 ($45,000 past, $140,000 future). Dr. Stein testified that the carpal tunnel surgery would cost about $50,000, physical therapy would add $10,000 more and that wrist fusion surgery would cost $80,000. The defense contended not only that the future surgeries would not be needed but also that Dr. Stein should not have been allowed to testify about the cost of the fusion surgery because the defense was never notified (either in the bill of particulars or the expert disclosure notice) that plaintiff would be making such a claim. The appeals court agreed with the defense and ordered a reduction of the future medical expense award to $60,000
- During the trial, defendants offered $175,000 to settle the case. Plaintiff rejected the offer but countered with a $250,000-$900,000 high-low proposal that was rejected by the defendants.
- In summations, defense counsel suggested that $250,000 would be a reasonable pain and suffering award; plaintiff’s counsel suggested $2,600,000.
- Plaintiff was unemployed and, therefore, she made no loss of earnings claim.
- Plaintiff is right handed but, prior to the accident, she used her left hand for everything except handwriting due to a prior right wrist sprain.