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

With about 40,000 officers, the New York City Police Department is the largest police force in the United States. Serving more than 8 million people, its mission is to enforce the laws, preserve the peace, reduce fear and provide for a safe environment. Day in and day out, the officers put their lives on the line and they’ve long been known as “The Finest.”

Violent crimes are of course perpetrated notwithstanding superb police protection and no one expects a police force to guarantee the absence of criminal violence.

On several occasions, though, individual citizens who have suffered serious injuries have sued the city claiming that there was a negligent failure to provide police protection that facilitated a violent crime. Most of those cases are dismissed.

On July 20, 1996, at her apartment building in the Bronx, Carmen Valdez was shot three times at point blank range – twice in the face, once in the arm. Felix Perez, her ex-boyfriend, against whom she had an outstanding order of protection because he had harassed and assaulted her before, then shot and killed himself.

Carmen lived after a month in a coma but with horrific injuries:

• obliterated mouth and jaw requiring several reconstructive surgeries
• inability to eat or talk for a year
• permanent pain
• memory loss
• facial spasms
• post-traumatic stress disorder

Carmen, then 30 years old, sued and in Valdez v. City of New York claimed that the NYPD had a special duty to protect her from Perez. She argued that her case was viable because she relied upon a promise of protection made to her specifically. At trial, she testified that:

• the day before she was shot Perez had called and threatened to kill her
• she then left her apartment, called the police and was told to return home because the officers would immediately go out and arrest Perez
• she returned home
• the next day she left her apartment to take the garbage out when Perez grabbed her, dragged her back inside and then she was shot by Perez

The city denied ever receiving a call from Valdez advising that she'd received a death threat and of course denied giving her any advice or assurances as to what she should do or how they would protect her by arresting Perez.

On March 28, 2006, after a two week trial, a jury found that Carmen was telling the truth. They then ruled that the city and Perez were equally liable and they awarded pain and suffering damages in the sum of $8,000,000 ($3,000,000 past – 10 years, $5,000,000 future – 40 years).

Carmen’s twin five year old boys were with her when she was shot. They were awarded $750,000 each for their emotional and psychological pain and suffering. With medical expenses added, the total verdict was nearly $10,000,000 (with interest, the judgment exceeded $11,000,000).

In a post-trial motion, the city asked the trial judge to set aside the verdict on the basis that the police had no special duty to protect Valdez. Even if, as Valdez testified, the police had known about Perez’s prior threat to kill her, there could be no liability on the part of the police because Valdez could not show she justifiably relied upon any promise to protect her made by a police officer. Alternatively, the city argued that the damages awards were excessive and should be reduced. In a thoughtful opinion, Justice Lucy Billings denied the city’s motion in all respects.

The city appealed. This week, in Valdez v. City of New York (1st Dept. 2010), the entire judgment was vacated by the appellate judges and the case dismissed.

The key to the appellate court’s new ruling appears to be its conclusion that, even assuming the truth of plaintiff’s claim that she called and was told by an officer to return home, she failed to show that she justifiably relied upon the alleged promise of police protection and an immediate arrest of Perez. The judges noted that in the 24 hours after her alleged call to the police, plaintiff did not call back to find out if Perez had been arrested (“because I thought [the police officer] would be out there in the street looking for Felix”). Therefore, the court concluded, plaintiff knew that the police needed time to find and arrest Perez and thus there was no demonstration of any reliance at all, let alone “justifiable” reliance, on the officer’s alleged assurance.

Valdez v. City of New York will now proceed to a final resolution by New York’s highest court, the Court of Appeals. The 3 to 2 split among the five judges on the appellate panel gives the plaintiff a right to this final appeal. With more than $11,000,000 now at stake, plaintiff will certainly exercise that right. We will report on the ultimate resolution by the high court.

Inside Information:

• The jury found the city was not only negligent but also reckless. Under CPLR 1601, that means the city is liable for the entire damage award, not just its 50% share. If the Court of Appeals reinstates the verdict, it may also address this issue too as the city bitterly contended that there was no evidence of recklessness.
• The $8,000,000 pain and suffering award was among the highest ever in New York. The appellate court did not rule on the city’s claim that it was excessive but that issue, along with the propriety of the awards to the children, will need to be resolved if the Court of Appeals reverses the dismissal.
• There are four prior cases that the Court of Appeals has ruled on with issues similar to those in Valdez v. City of New York: Dinardo v. City of New York (2009), McLean v. City of New York (2009), Cuffy v. City of New York (1987) and Sorichetti v. City of New York (1985) (the only one of which allowed the claims to stand). The parties in Valdez v. City of New York each interpreted differently the application of these four cases, in particular under what facts and circumstances a special relationship may be found and/or justifiable reliance is needed to hold the city liable for injuries caused by a criminal’s violent acts or the failure of a governmental agency to do its job. The current Court of Appeals will now have the final word.
   

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November 4, 2001 began as a great day for ten year old Leonari Jones. She was an active, playful, happy kid who had a sleepover party and was on the subway returning home to the Bronx with her  friends and babysitter. When the train pulled in to her stop at 174^th Street, though, Leonari’s life took a tragic turn.

As she exited the subway car, Leonari placed her left foot on the platform but her right foot became caught between the doors. She tried to dislodge her leg but couldn’t and the train pulled out so she started to hop on her left leg to keep up with the increasing speed of the moving train.

This shows similar city subway doors but Leonari wasn't going in, she was trying to get out:

What followed was terrifying and gruesome.  I will spare you all of the details. The train sped up to 30 miles per hour and dragged Leonari about 300 feet before it stopped and she fell 30 feet to a secondary platform. During those terrifying moments, Leonari’s skin was ripped off and her leg was broken as her hands, stomach and body were dragged, burned and scraped along the subway platform. She was rushed to the hospital where she was diagnosed with:

• Right leg Salter II fracture of the distal tibia with the fracture line extending through the tibia and into the growth plate
• Second degree wounds and abrasions akin to burn injuries to approximately 10% of her body surface area

This poor 10 year old then underwent a nine day hospitalization in which her right leg was placed in a cast from her torso to her ankle and, every four to six hours, she underwent excruciatingly painful tissue debridement to treat her burns. To the extent she could sleep at all, Leonari’s sleep was interrupted constantly with nightmares and screaming. At trial, she claimed she suffered significant post-traumatic stress symptoms.

Leonari started using crutches after two months (due to hand bandages she could not use them before) and finally after five months she began to walk unassisted (though with a permanent limp).

Trial on damages only resulted in a Bronx County jury verdict on August 14, 2006 in the sum of $3,000,000 for pain and suffering ($1,500,000 past – 5 years, $1,500,000 future – 63 years). In a decision released two days ago, the appellate court in Jones v. New York City Transit Authority affirmed the entire award and declared that the amount did not deviate materially from what would be reasonable compensation (the standard for review under New York’s CPLR 5501).

This is a stunning decision, especially in view of several facts not mentioned:

• Plaintiff never underwent any surgery for either her leg fracture or her burns
• Plaintiff didn’t undergo any psychological treatment until January 2005 when she first did so at the urging of her lawyers

We know that New York juries can and do render amazingly high (and low) pain and suffering verdicts from time to time; however, that’s why CPLR 5501 was enacted and that’s when appellate courts get into the action and modify the awards up or down as they see fit. Why in this case, though, did the appellate court allow $3,000,000 in pain and suffering damages to stand without any modification downward in view of what appears to be a non-catastrophic injury case? This is neither a case dealing with a paralyzed person, nor one on lifetime pain medication, nor one with an inability to walk at all.

Digging into all of the facts and reviewing the parties’ briefs on appeal, we have uncovered the following additional facts not mentioned in the court’s decision:

1. Battle of medical experts: Plaintiff’s orthopedic expert was world-renowned David P. Roye, M.D. He’s a pediatric orthopedist who operates on kids 200 times a year. The defense orthopedist (who performs 70% of his work in the litigation field) conceded on the stand that Dr. Roye has superior knowledge in this field.
2.  Plaintiff’s broken leg was two centimeters shorter than her other leg due to the accident, and Dr. Roye, a published expert on leg length discrepancy, testified that this was quite significant and disabling, resulted in pelvic obliquity (a crooked pelvis) and will require surgery to repair. 
3. Plaintiff was previously very active in multiple sporting activities, can no longer engage in any of them and now walks with a limp.
4. Plaintiff’s right knee dislocated many times since the accident and she will require at least one knee surgery in the future.
5. Plaintiff produced a plastic surgery expert who testified that her scars all over her abdomen, underneath her breasts and on both legs are permanent. Defendant failed to produce an expert to rebut this testimony and the jury was able to evaluate the scars in person at trial.
6. Both parties presented expert testimony as to plaintiff’s psychological injuries. Plaintiff’s expert testified that she has a textbook case of post-traumatic stress syndrome with significant symptoms including nightmares, persistent fears, sleep problems, difficulty relating to people, concentration problems and flashbacks; while the defense expert disagreed on the basis of a 20 minute examination without having reviewed the medical records.
7. Plaintiff’s mother testified that as a social worker with clinical training, she sought faith based counseling before turning to psychotherapy for her daughter. Clearly, this blunted the defense argument about the lack of “formal” counseling until her lawyers suggested it.

The defense conceded that this was a horrible incident and that the plaintiff deserved compensation for her pain and suffering; however, they argued that $3,000,000 was unreasonably high. In what may have been a tactical mistake, the defense suggested on appeal that they only challenged the future pain and suffering award of $1,500,000 and that the past pain and suffering sum (also $1,500,000) was reasonable. Then, they suggested that the court view the future pain and suffering verdict as having been rendered by the jury in three equal parts for orthopedic, dermatological and psychological injuries (i.e., $500,000 for each category). Finally, the defense asked the court to reduce the future pain and suffering award from $1,500,000 to $550,000 ($350,000 orthopedic, $100,000 each for dermatological and psychological).

The court must have considered the $350,000 concession by the defense for future orthopedic pain and suffering against the $500,000 (hypothetical) award to be a minor variance and not worth reviewing and then it simply declined to modify the (hypothetical) awards of $500,000 for future dermatological pain and suffering (against a $100,000 concession and 63 years of scars and disfigurement) and $500,000 for future psychological  pain and suffering (against a concession of $100,000 and 63 years of post-traumatic stress symptoms).

The only two cases cited by the court in its decision were Lopez v. Gomez (2003) and Carl v. Daniels (2000), each of which we discussed previously, here.  Each dealt with a youngster with a femur fracture ($1,500,000 affirmed for past pain and suffering in Lopez; $4,800,000 affirmed for past and future pain and suffering in Carl) and each seems relevant, though not dispositive.

Jones  v. New York City Transit Authority involved a unique combination of injuries with reciprocal exacerbating effects. It may, therefore, turn out to be a case that’s not oft-cited but it’s clearly one that grabbed the attention of the jury and so impressed the jury, the trial judge and the appellate court that $3,000,000 was awarded and affirmed for pain and suffering in a non-catastrophic injury case. It deserves to be studied.

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Sexual harassment in the workplace – in some cases it’s quite real and devastating to the victim; in others it’s a baseless claim. It is clear, though, that sexual harassment is a form of impermissible discrimination outlawed under several statutes (e.g., 42 U.S.C. Section 2000e, known as Title VII of the 1964 Civil Rights Act and New York’s Executive Law Section 296, known as New York State’s Human Rights Law) and that when actual sexual harassment is proven victims may sue and recover damages such as psychological pain and suffering, lost earnings and, in certain cases, punitive damages. An excellent overview is here, from New York’s Attorney General Andrew Cuomo.

The case against Matthew Miller, at first blush, may have appeared to be one that didn’t merit much attention by the law or warrant any significant remedy for a nurse who claimed he groped her at their hospital. Here was a primary care physician with a general practice in family medicine in Queens, New York who was accused by nurse Janet Bianco of a course of inappropriate conduct towards her over several years at Flushing Hospital Medical Center.

It culminated, she said, on September 7, 2001 when she was tending to a bedridden patient and the doctor blocked her path, felt her vagina and squeezed her buttock.

Bianco filed a complaint with the hospital, Miller was promptly investigated and he resigned later that week. If true, Bianco’s allegations would form the basis of a viable civil suit against Miller but to what end? Were his actions really that bad? Did Bianco suffer any significant damages? Yes and yes, said a Queens County jury in February 2009 in Bianco v. Flushing Hospital Medical Center (Supreme Court, Queens County, Index # 18702/04).

Although she waited to complain about Miller until after the September 7^th incident, it’s now clear that he was one vile man. He quickly settled the lawsuit with Bianco (for an undisclosed sum), leaving the hospital as the sole defendant. A review of public records discloses that  Miller was sanctioned in 1998 by New York’s Department of Health (the “DOH”) because he had engaged in a sexual relationship with a patient over a 16 month period during which time he treated her for nervousness and prescribed medication such as Valium. The sanction? Not much. The DOH issued a three year suspension from the practice of medicine but stayed enforcement because it said Miller would be rehabilitated and the public would be protected. Wrong.

In her lawsuit, Bianco charged, and other victims said in sworn statements, that Miller engaged in an almost constant and unchecked pattern of sex talk and unwanted physical contact. New York’s Daily News staff writers Nicole Bode and Thomas Zambito have been all over this story, here, here and here.

So, after Miller settled, the question was what if any responsibility the hospital bore for Miller’s illegal actions. Plenty, said the jury.

The jury awarded Bianco $15,000,000

• $8,000,000 past emotional distress (8 years)
• $5,500,000 future emotional distress
• $1,500,000 punitive damages)

Liability against the hospital required a finding that it had prior notice of Miller’s misconduct and that it failed to take reasonable steps to take corrective action. Bianco claimed that before the September 7, 2001 incident, a medical director of the hospital actually witnessed Miller trying to kiss her and on that basis an earlier appeal by the hospital seeking a pre-trial dismissal was denied and the case was allowed to be considered by the jury on the question of whether the hospital had prior notice.

Bianco’s pain and suffering was all psychological – she began treating with a clinical psychologist shortly after she started her lawsuit in 2004. The psychologist testified that Bianco suffered from post-traumatic stress disorder and a major depression.

In a post-trial decision recently released, here, the trial judge eviscerated the jury’s damage awards and all that now stands is $750,000 for past pain and suffering (reduced from $8,000,000 as excessive).

Future pain and suffering in the sum of $5,500,000 was completely tossed out because plaintiff’s medical witness would not state with any degree of certainty the degree and length of Bianco’s future post-traumatic stress and depressive disorders.

As to punitive damages, the judge said there was no valid line of reasoning to support the jury’s conclusion that the hospital’s action was malicious or willful since its medical director did take prompt corrective action after Bianco’s complaint against Miller. So the entire punitive damages award of $1,500,000 was thrown out.

Left with only $750,000, plaintiff will appeal. There’s no doubt that the $13,500,000 in pain and suffering awards was wildly excessive. There’s also no doubt, though, a new jury would be disgusted with evidence of what Miller did and who he was. By consent order dated July 9, 2004, Miller agreed he would not contest Bianco’s September 7, 2001 charges (detailed in gruesome detail) as well as similar such acts over years with another nurse. And, he agreed to a three year suspension of his license to practice medicine.

 The question at any new trial will be the proper amount of damages. I predict the denial of punitive damages will stand and that no more than $750,000 for past pain and suffering will be awarded or allowed to stand (either on retrial or by an appellate court). And, if, as in the first trial, there is no credible evidence of future pain and suffering then the $750,000 the trial judge let stand may be all that plaintiff recovers. As always, we will follow, report and analyze.

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