On November 5, 2005 at about 7:30 p.m., Theresa Guss was injured in a trip and fall accident in the street when she stepped into a large rectangular deep hole in the street while getting out of the back of a taxicab at the curb abutting her home on Ainslie Street in Brooklyn.
The cab driver heard her scream in pain, found her on the ground and helped Ms. Guss get into her home. It was a Friday night and Ms, Guss, then 54 years old, stayed at home in pain until Monday when she called an ambulance to take her to the local hospital complaining of severe left hip pain and an inability to walk due to the pain. She was diagnosed with a left hip fracture and admitted for surgery.
In the ensuing lawsuit against the City of New York, on June 11, 2013, a Kings County jury determined that the city had created the hole in the street during an excavation there six weeks before the incident and, therefore, despite the absence of prior written notice, the city was liable for plaintiff’s injuries and resulting monetary damages.
In Guss v. City of New York (2d Dept. 2017), the liability verdict was affirmed but the appellate court agreed with the city that a substantial portion of the damages award was excessive.
The jury awarded $650,000 for pain and suffering ($433,333 past – 7 1/2 years, $216,667 future – 8 years), an amount that was not challenged on appeal or addressed by the appellate court.
In addition to the award for pain and suffering, the jury awarded $2,025,600 for future medical expenses which included $1,344,000 for future nursing home costs. Finding that aspect of the future medical expenses award unsupported by the evidence and duplicative of the $681,600 awarded for other future medical expenses, the court reduced the future medical expenses award to $681,600.
Here are the details as to the eight years of future medical expenses awarded by the jury, as set forth on the verdict sheet:
- doctors’ care – $139,600
- physical therapy – $14,400
- mental health care – $14,400
- nursing home care – $1,344,000
- medications – $480,000
- transportation – $19,200
- medical equipment – $14,000
The medical expenses awards were based upon the testimony of plaintiff’s expert in physical medicine and rehabilitation who examined plaintiff in 2011 and reviewed all of her medical records. The city did not produce an expert of its own. Instead, the city argued successfully that, in view of the fact that by the time of trial in 2013 plaintiff was already residing at Nesconset Center for Nursing and Rehabilitation since 2011 and was bedridden, suffering not only from the hip fracture and related complications but also from serious and significant pre-existing medical conditions such as chronic obstructive pulmonary disease (COPD), osteoporosis and depression, and in view of the fact that the nursing home medial records and invoices were not produced, there was duplication and speculation in the award as to the $1,344,000 awarded for nursing home care.
Here are details of the injuries plaintiff sustained in this incident:
- left femur head and neck fractures requiring total hip replacement surgery two days after the accident and a nine day hosiutal admission
- infection complication requiring removal of hardware and revision surgery in July 2006
- multiple hip dislocations
- two additional surgeries for hip dislocation complications with new hip replacements
- exacerbation of pre-existing osteoporosis
- exacerbation of anxiety and depression that pre-existed since 2003
- bedridden after fourth surgery requiring permanent residence in nursing home
- Plaintiff’s expert stated that due to Ms. Guss’s extensive pre-existing exacerbated medical problems “she could probably live at least another five years” but “probably not ten.”
- Plaintiff was too sick to testify at trial; at the time, she was in and out of hospice care for a year. Instead, the jury was shown her videotaped deposition from two months earlier and was read other pre-trial testimony from plaintiff as well.
- Ms. Guss still resides in a nursing home.