New York Injury Cases Blog : New York Personal Injury Lawyer & Attorney : John Hochfelder Law Firm : Traumatic Injury, Wrongful Death

Personal injury lawyers are often asked, "Can I sue?" I always answer, "Yes, of course." But the real question is whether the inquiring plaintiff will win and in school sports injury lawsuits the answer is almost always, "No way."

Time and again school kids are injured playing football, basketball, baseball and other sports in competition or just in gym class. And, too often, their parents, urged on by lawyers, end up suing school coaches and gym teachers on the theory that some obligation owed to the student was breached by the school personnel.

I say "too often" because most of these cases are dismissed before trial. And that's just what happened in the latest such case arising out of Pleasantville, New York - a bucolic village in Westchester County near the Hudson River established in 1695.

On March 17, 2006, then 12 year old Sean Bramswig, a 7th grader, was playing floor hockey in middle school gym class when a teammate accidentally struck him in the mouth with a plastic hockey stick. They had just scored a goal and were at half-court for the ensuing face-off when Sean was hit.

Here's what a face-off looks like in floor hockey:

Sean's parents brought a lawsuit for their son's injuries (described below) asserting claims that the school was:

1. negligent in its supervision and instruction of students with respect to hockey equipment and play and
2. negligent in failing to provide Sean with proper safety equipment

After a year and a half of proceedings in Bramswig v. Pleasantville Middle School, including the depositions of Sean and his parents, the gym teacher and other school personnel, and after both sides hired expensive so called recreational activity experts, the school district asked the judge to toss the suit. In making a motion for summary judgment, the defendants asserted that:

• there were no significant factual disputes between the parties that needed a jury determination
• legal principles and precedent established that defendants could not be liable since there were two teachers supervising the game
• there was no horseplay or fooling around when the incident occurred
• the incident was so sudden that no amount of supervision, however intense, would have succeeded in preventing it
• the kids were given protective goggles and mouth guards were not required

The judge pretty much agreed with the defense. He dismissed that portion of the case that was based on negligence in failing to require mouth guards. That was easy (and that claim should never have been asserted) because of clear and recent precedent - the case of Walker v. Comack School District (2nd Dept. 1996) already established that goggles are enough protection and schools need not provide mouth guards to students playing floor hockey.

As to the claim of negligent instruction, though, the judge allowed the case to proceed. It was undisputed that the teachers had advised the kids they were not to "high stick" but the judge agreed with the plaintiffs that the teacher may have failed to properly instruct the students about the differences and dangers involved in high sticking above one's knees versus high sticking above one's waist.

On the defendants' appeal, the appellate judges dismissed the only remaining aspect of the case  (negligent instruction). Since Sean was struck by a teammate who high sticked above his waist, the court reasoned that it mattered not at all whether the kids were told of any distinction between high sticking above the knees or the waist.

This entire case should never have been commenced. It should have been clear to the plaintiffs' attorneys that it was a loser. Winning sports injury cases in New York is hard enough under almost any set of facts, as we discussed here.

To boot, though, Sean's injuries just weren't all that severe (and his medical expenses were submitted to insurance). According to Sean's bill of particulars (in which one is required to specify injuries), Sean's injuries were:

• four front teeth which were "pushed backwards" and required oral surgery to be stabilized.
• a cut lip and stitches
• missed almost two weeks of gym class 

The lawsuit was finally dismissed in full by the appeals court just three days before Christmas when many kids were hoping simply for two front teeth:

Inside Information:

Plaintiffs' attorneys are well-known as a "defense firm" - one that represents insurance companies in the defense of bodily injury lawsuits. On rare occasions (when the injury is quite severe and the liability of the defendant quite obvious), a defense firm will represent a plaintiff. One wonders why, though, Shaub, Ahmuty, Citrin & Spratt ever took on this case (i.e., one with minimal injuries and little prospect of proving fault on the defendants' part). I suspect it had to do with a pre-existing personal relationship with the parents. The firm would have been better served by taking a pass on this case.

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On March 2, 2002 at about 5:30 p.m., Miguel Beato returned home from work as a porter. As he walked through the courtyard of his apartment complex at 35-46 65^th Street in the Woodside section of Queens, New York, he was confronted by an unknown gang of men. He asked them to move out of his way and they responded by with a 15 minute attack in which Miguel was beaten continuously and severely.

Beato faced a gang of hoods like this:

Beato sustained injuries all over his face, including:

• an orbital (eye socket) fracture
• a mid-face (depressing and caving in the area from the eye to the teeth) fracture
• a displaced eye
• a markedly displaced fractured nose that obliterated his sinus

The attackers fled but were caught, convicted and jailed. Beato, then 39 years old, sued the building owner claiming that the owner negligently failed to provide adequate security. A Queens County jury agreed and apportioned liability 75% to the owner and 25% to the attackers. Pain and suffering damages were then assessed at $5,000,000 ($1,500,000 past – 6 years, $3,500,000 future – 15 years). The trial judge then ruled that the award was excessive and should be reduced to $3,500,000 ($1,500,000 past, $2,000,000 future).

The building owner appealed arguing that there was no basis for any liability against it because the attack was neither foreseeable nor the result of any negligence on its part. Also, the defendant urged that the future pain and suffering award of $2,000,000 was still excessive (no challenge was made to the reasonableness of the $1,500,000 for past pain and suffering).

Last week, in Beato v. Cosmopolitan Associates, LLC, the appellate judges agreed with the defense and dismissed the entire case. Plaintiff’s testimony that he previously complained of loitering and suspected drug sales in the building lobby was ruled insufficient to establish the requirement that the assault was foreseeable.

The appellate judges in Beato did not address the arguments as to the reasonableness of the damage awards stating that in view of the dismissal on the merits those issues were academic. Here, though, we can and will address those issues and we do so with the benefit of the parties’ submissions to the court, including their briefs on appeal.

First, let’s take a look at some details as to the injuries in this case. The injuries are generically described above but here are their technical terms:

• comminuted fractures of both sides of his nasal bones
• comminuted fractures of his left orbital floor and nasal septum
• fractures of the left lamina papyracea and lateral superior wall extending to the frontal maxillary sinus and significant nasal lacerations

Blowout fractures are casued by direct trauma to the globe, like this:

If ever the term “getting his face punched in” applied, this is the case. Photographs of the plaintiff as he appeared shortly after the attack were shown to the jury (over defense objections) and no doubt they were stunned and sympathetic.

Now, let’s see what happened to Mr. Beato after the attack. He was immediately taken by ambulance to the hospital and admitted. He underwent two complex surgeries – one addressed the repair of his sinus and septum and the other consisted of open reduction and internal fixation of the orbital floor fracture.

At trial, six years after the incident, Beato had difficulty breathing due to his sinus injury, scars on his face and his surgeon stated he’d need additional surgeries to redo his nose, take out the plate and open his sinus and would have lifelong pain, difficulty breathing, physical and visible deformities and the need for narcotic pain medication.

It’s usual in injury cases that the defense will avail itself of its right to have the plaintiff examined by one or more doctors of its choosing to verify or dispute the severity (and causation) of a plaintiff’s injuries. The defense doctors are then usually called to testify at trial as to their findings. In this case, though, the defense chose to keep its doctors out of court and the plaintiff therefore sought and obtained a missing witness charge. That’s where the judge tells the jury that it may draw negative inferences from the defendant’s failure to call its own physicians. Clearly, that hurt the defense in this case and the jury accepted as true all of the dire future consequences testified to by plaintiff’s own doctors.

The defense gambled in this case in failing to call its doctors to testify and then after the verdict in declining to challenge the $1,500,000 past pain and suffering. In the end, the gamble paid off.

Before it did, though, there was substantial argument and disagreement over the propriety of the award for future pain and suffering. Would $2,000,000 have been sustained had liability not been overturned? I think not. There is a dearth of precedent as to sustained multi-million dollar verdicts for facial injury pain and suffering. Also, defense counsel claimed plaintiff made a good recovery and that plaintiff’s doctor’s claim that plaintiff would need lifelong pain medication was belied by the fact that at trial he took nothing more than over the counter antihistamine.

We’ve reviewed facial injury cases, here, especially several in the $200,000 to $500,000 range.

There are very few cases awarding $1,000,000 or more for facial injury pain and suffering. Here are some:

• Simon v. Sears Roebuck & Co., Inc. (2^nd Dept. 1986) - $1,000,000 for loss of eye following car accident
• Stiuso v. City of New York (2^nd Dept. 1996) - $1,750,000 ($1,000,000 past – 4 years, $750,000 future – 15 years) for loss of an eye and fractured jaw
• Storms v. Vargas (2^nd Dept. 1998) - $4,000,000 ($3,000,000 past – 10 years, $1,000,000 future – 32 years) for 31 year old police officer in car accident who sustained crush fractures all over his face requiring 26 separate surgical procedures and 16 one week or more hospitalizations prior to trial and was left with an artificial eye, limited vision and the need for additional surgeries once every two years for life

Without minimizing what Mr. Beato went through and will be left with for his life, it appears that had Beato's $2,000,000 future pain and suffering verdict been reviewed by the appellate court it would have been reduced substantially given the case law discussed above and especially in view of Storms v. Vargas where the injuries appear to be much more severe.

Inside Information:

• the jurors appear to have been confused in that plaintiff offered proof of $52,000 in medical expenses incurred to the date of trial but the jury awarded $250,000 for that element of damages
• further evidence of juror confusion: they awarded $1,500,000 for future medical expenses but the trial judge reduced that sum to $200,000 as the doctors’ testimony as to the costs future treatment justified no more than that
• had liability been upheld, the defendant would have had to pay the entire damages award even though the jury found others (the criminals) were 25% at fault and that’s because under New York’s CPLR Article 16 a defendant in this type of case will be liable for the full damage award when found to be 50% or more at fault

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On a beautiful spring day, 16 year old Chelise Navarro had just finished her turn at bat during high school softball practice at a New York City high school. She handed her bat to the next player who took a full practice swing and .... You know what happened next. Bam. Smash. Crush. Bones broken. Chelise took a full, powerful bat swing right into her face and sustained a crushing fracture of of the bone under her left eyelid, displacement and bowing of the zygomatic arch (which forms the prominence of the cheek) and a fracture of her maxillary sinus.

Let's take a look at some of these facial bones:

In Navarro v. City of New York (Supreme Court, Bronx County; Index # 25776/04; 11/25/08), Chelise claimed that the New York City Department of Education was liable for her pain and suffering injuries because her gym instructor didn't properly supervise the other students. And she won her case when the Bronx County jury (said by a  character in the movie "Bonfire of the Vanities" to be the best juries for plaintiffs because they believe in the redistribution of wealth) awarded her $2,750,000 for her pain and suffering ($750,000 past, $2,000,000 future).

A post-trial motion is pending as we write and no matter what the judge decides, in my experience I can tell you that there will be an appeal of this case. Defense counsel is adamant that there was no liability on the city's part - that fault should rest only on the student who whacked Chelsie in the head.  I think the city is right and will succeed on its appeal to have this case thrown out. Even if liability is upheld, though, the appeals court will very likely find that the pain and suffering damages awarded were excessive and that they should be reduced substantially.

A review of all of the reported and many unreported cases that dealt with jury awards for facial injury pain and suffering indicates that the sustainable range for most of the significant facial injury cases is $200,000 to $500,000.

Of course there will be an isolated case here and there with much higher or lower recoveries that are sustainable but they are the exception, not the rule. For example, there's the case of Storms v. Vargas in which an appeals court upheld a $4,000,000 Kings County pain and suffering verdict for a 31 year old police officer. But that case was atypical in that the plaintiff there was in a high speed emergency vehicle accident when his face was thrust into a metal and glass speedometer and  his eye, face, nose and forehead were all crushed and had to be surgically rebuilt. By the time of trial, he had already undergone 26 surgeries, wold likely need 16 more. He was, as the court declared, "a patient for life." Clearly, that case is extraordinary.

Here's what happens when bones in the face are so broken that surgery with metal insertions (i.e., open reduction internal fixation) is needed:

And here are some of the more typical and recurring facial injury cases which, as you will see, end up with sustainable verdicts in the $200,000 to $500,000 range:

• Resnick v. Linkow - $400,000 ($150,000 past, $250,000 future) pain and suffering award for a 41 year old patient in a dental malpractice case in which plaintiff claimed a nerve was penetrated during dental implant surgery leaving him with permanent facial numbness, a drooling sensation and facial itchiness. The New York County jury had returned a verdict of $2,000,000 but the trial judge reduced it to $1,000,000 and then the appeals court even further.
• Angerome v. City of New York - $500,000($200,000 past, $300,000 future) pain and suffering award for a 15 year old passenger in a high speed car accident who sustained a traumatic injury to her jawbone, a left angle fracture and a right para-symphsis fracture. Her jawbones had to be wired shut for eight weeks, she had a second surgery to tighten the arch bars in her jaw and she was left with a permanent clicking and muscle spasms around her jaw. The Queens County jury had awarded her $2,250,000 for her pain and suffering  but the appeals court substantially reduced that figure finding that the jury's award deviated materially from what would be reasonable compensation.
• Mancusi v. Miller Bewing Co. - $500,000 ($200,000 past, $300,000 future) pain and suffering New York County jury verdict affirmed for a taxi cab passenger whose face was thrown against the Plexiglas partition separating the front and rear seats. She had lacerations to her face and inside her mouth, parasthesias affecting her chin and lip, trauma to seven teeth and internal derangement of her temporomandibular joint ("TMJ"). After extensive dental surgery, Ms. Mancusi was left with a permanent limited ability to open her mouth and the appeals court found that the $500,000 verdict was reasonable.
• Cicalese v. Carter - $105,000 ($35,000 past, $75,000 future) pain and suffering award for a woman in a dental malpractice case who claimed that her dentist caused her TMJ when he placed a bridge into her mouth too forcefully. The Suffolk County jury had awarded $200,000 for Ms. Cicalese's pain and suffering but the appeals court reduced that sum apparently affected by the fact, not reported in the decision but found by me after searching through court records on file, that the plaintiff had been involved in a huge car crash three years before she sought the bridge treatment and that in the car accident she had huge facial injuries including a fractured cheekbone that required surgery. On top of that, there was evidence that three years before the alleged malpractice the plaintiff had complained of TMJ-like symptoms and was advised to see a TMJ specialist but that she failed to do so. I'd say this plaintiff was lucky to walk away from her dental malpractice case with any verdict at all.

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