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

There was no question as to liability - 54 year old Bill Bouzas slipped and fell on a wet floor at a New York City restaurant on February 1, 2007 and the jury found it was all the fault of the defendant. After a one week trial ending May 7, 2009, though, the same Manhattan jury ruled that Mr. Bouzas was entitled to only $10,000 for his past pain and suffering (and nothing at all for the future). This, despite the fact that his injuries included an acute dislocation of his dominant shoulder and surgery three months later to repair a torn rotator cuff in that shoulder.

In a post-trial decision handed down last week by the trial judge in Bouzas v. Kosher Deluxe Restaurant, plaintiff fared no better. The judge had the conditional power, under New York's CPLR 4404, to modify upward the pain and suffering award if she found it was against the weight of the evidence (i.e., if the amount deviated materially from what would be reasonable compensation). I say "conditional" because the judge can't impose a higher (or lower) figure on the parties; what she can do is declare that the verdict was unreasonable, state what amount is reasonable and then order a new trial unless the parties agree to the reasonable figure. Most cases then settle for the new figure (or there's an appeal to the higher court).

In Bouzas v. Kosher Deluxe Restaurant, the judge stated:

•  " ... the award may deviate materially from what would be reasonable compensation for the injuries ..." and
•  she found no cases in which less than $80,000 was awarded for a shoulder dislocation.

Then, inexplicably, the judge concluded that she was not empowered to adjust the verdict and that its inadequacy would best be addressed by an appeal to a higher court.

With a golden chance to eliminate further litigation in a garden variety slip and fall case (the kind of case that clogs the court system), the judge could have - and should have - ruled that $80,000 was a reasonable pain and suffering verdict and that if the parties did not stipulate to that sum then there would be a new trial. In all likelihood, the parties would have agreed and the case would already be settled. Instead, plaintiff will now appeal and wait a year or more for a new ruling.

While the judge did not cite any of the pain and suffering verdicts she found on point (all of which she said were $80,000 or more), we set forth here some shoulder dislocation verdicts and, more importantly, appellate court decisions, that are relevant:

• Conte v. City of New York - $300,000 ($150,000 past, $150,000 future - 28 years) for  a 54 year old unemployed artist who tripped and fell sustaining a shoulder dislocation and a Hill-Sachs lesion requiring 2 1/2 months in a sling and surgery that plaintiff declined.

                                     A Hill-Sachs lesion is a complication of shoulder dislocations, causing damage to the head of the humerus:

• Jansen v. C. Raimondo & Son Construction Corp. - $750,000 ($350,000 past, $350,000 future) for an ironworker who fell from a ladder and sustained a subluxation of one shoulder, a dislocation of his other shoulder, fractures to one humerus and bilateral carpal tunnel syndrome. He required two surgeries already and will need more.
• Guzman v. Cisse (Supreme Court, New York County; 9/19/02; Index # 006778/96) - $175,000 ($75,000 past - 7 years, $100,000 future) for a 19 year old retail clerk struck by a car while crossing the street. He sustained a dislocated dominant shoulder with rotator cuff injuries.
• Hertzmark v. Triple Mittil Foods, Inc. (Supreme Court, New York County; 4/29/02; Index # 113318/99) - $150,000 ($75,000 past, $75,000 future) for a 39 year old fashion marketing executive who slipped and fell sustaining a shoulder dislocation requiring arthroscopic surgery. Ms. Hertzmark admitted to having dislocated her shoulder in a prior skiing accident.

For even more information on shoulder injury pain and suffering verdicts in New York, see our previous posts here, here and here.

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The scapula, also known as the shoulder blade, is the flat triangular bone of the shoulder girdle. It articulates with the clavicle (the collarbone) and it forms the glenoid fossa with which the humeral head articulates.

Take a look:

There aren't a lot of scapula fracture cases or decisions that result in large pain and suffering damage awards or appellate court decisions. In part, that's because when it's only the scapula that's injured it's usually not too serious and heals well without surgery. When it's a bad scapula fracture, there are often other injuries too such as head injuries or facial fractures which often dwarf the scapula fracture insofar as pain and suffering is concerned.
 

This month, though, an appeals court in New York weighed in on the amount of pain and suffering damages that's proper in a case involving only a scapula fracture. In Keaney v. City of New York, a 57 year old construction worker was unloading wooden planks and frames when two planks fell from the top of 30 foot scaffolding and struck the plaintiff on the right shoulder, knocking him to the ground.

Michael Keaney was taken by ambulance to the hospital where he was diagnosed with an extensive, comminuted fracture of his right scapula. By the time of  trial seven years later, the fracture itself had healed but Keaney testified that he:

• could no longer raise his right hand and had to use his left hand for all activities of daily living such as using the toilet, shaving and brushing his teeth.
• underwent physical therapy for seven years
• was still on painkillers seven years later, and,
• was never able to return to work

The Queens County jury awarded Keaney $1,6000,00 for his pain and suffering ($700,000 past; $900,000 future) and the defense appealed arguing that the verdict amount was excessive.

The appeals court agreed with the defense and ordered a reduction to $500,000 ($200,000 past, $300,000 future).

The $500,000 for pain and suffering for a fractured scapula in a 57 year old man is the highest reported such verdict (i.e., for a case involving only the scapula). Plaintiff argued that his injuries  were unique in that:

• his arm served no practical functional use and caused him exquisite, worsening pain
• his testified that he suffered a massive permanent shoulder girdle injury and adhesive capsulitis ( frozen shoulder)

Inside Note: The appeals court indicated that a major reason for the reduction of the jury's verdict was that plaintiff had not submitted to the arthroscopic surgery his orthopedic surgeon recommended and had testified would likely help the plaintiff's condition. Judges routinely instruct juries using New York's Pattern Jury Instructions (in this case PJI 2:325) that:

a plaintiff who fails to have a recommended operation may be held to be unreasonable and denied all or some damages. If, though, the plaintiff satisfactorily shows the jury that his refusal to submit to surgery was due to his inability to pay for it (as was the case with Keaney) or that the surgery would not have relieved the pain (argued here) then the jury is told it should not reduce damages.

Clearly, in awarding $1,600,000, the jury in this case "bought" all of Keaney's arguments concerning the reasons he declined the surgery. Therefore, the appeals court should not have taken into account the surgery refusal in reducing the pain and suffering award.

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On December 22, 1999, Lieutenant Nocenzu Cusumano, a New York City firefighter, reported to work at the city's recently renovated Staten Island training center. He slipped on stairway debris and fell 16 feet down to a concrete floor. He reached out for a handrail or banister but none was there as the renovation was illegal and violated the building code.

Like these stairs under construction, there was no handrail or banister:

Here are the injuries Lt. Cusumano sustained:

• crushed left hand and wrist with fractures of his hamate, capitate and lunate bones requiring reconstructive surgery with pins and wires
• left shoulder impingement requiring two surgeries (known as acromioplasty) to remove bone and scar tissue
• exacerbation of previously torn meniscus in his knee now requiring surgical repair

In the ensuing lawsuit, Cusumano v. City of New York, a Queens County jury awarded plaintiff pain and suffering damages in the sum of $1,700,000 ($1,200,000 past, $500,000 future). The past award was for the seven years from the date of the accident to the date of the verdict. The future award was based on plaintiff's life expectancy of 15 more years.

The defendant appealed, claiming that $1,700,000 was excessive and the appellate court agreed as to the past pain and suffering verdict. It held that $1,200,000 was too high and reduced it by $455,000 to $755,000. The $500,00 verdict for future pain and suffering was affirmed.

So, on what basis did the appeals court conclude that $455,000 should be deducted from the jury verdict for past pain and suffering? We have previously noted that appeals courts often provide no basis at all in their decisions reducing personal injury jury verdicts (for example, here and here). In this case, though, the judges purport to provide some basis for their decision.

The decision states that  " ... upon consideration of the nature and extent of the injuries sustained by the plaintiff [the court did recite the specific injuries in its decision], the jury's finding that the plaintiff sustained damages in the sum of $1,200,000 for past pain and suffering deviated materially from what would be reasonable compensation to the extent indicated herein [i.e., the past pain and suffering verdict was $455,000 too high]." That's the usual standard statutory language of CPLR 5501 inserted into almost every appeals court decision wherein damages are reduced (or increased). That provides no guidance or justification.

The judges then go on to cite six prior cases as support for their decision. Let's take a look at those cases and see if they do.

1. Deshommes v. Hussain - 40 year old taxi driver in car accident sustained a herniated disc (no surgery). The jury verdict of $1,200,000 ($300,000 past, $900,000 future) was reduced on appeal to $700,000 ($200,000 past, $500,000 future).
2. Pitera v. Winzer - a 37 year old man in a car accident sustained a torn meniscus requiring surgery (as well as bulging cervical discs and a herniated lumbar disc none of which required surgery). The jury's $1,100,000 verdict ($450,000 past, $650,000 future) was reduced on appeal to $550,000 ($200,000 past, $350,000 future).
3. Jansen v. Raimondo & Son Constr. Corp. - a 36 year old firefighter fell injuring both shoulders requiring surgery on each. The jury verdict of $730,000 for future pain and suffering was reduced to $400,000. The $350,000 for past pain and suffering was affirmed and thus the total affirmed was $750,000.
4. Purcell v. Axelsen - a motorcyclist sustained fractures of her pelvis (no surgery),  wrist (surgery) and a lumbar vertebrae (no surgery). The jury verdict of a mere $10,000 (past only) was increased on appeal to $250,000 ($130,000 past, $120,000 future). There were significant credibility issues at trial regarding both plaintiff and her treating doctor that resulted in the low jury verdict.
5. Frascarelli v. Port Auth. of N.Y. & N.J. - a 35 year old who was assaulted sustained a torn meniscus requiring arthroscopic surgery. Plaintiff was out of work for only six weeks and required no more surgery.  The jury verdict of $700,000 ($300,000 past, $400,000 future) was reduced on appeal to $450,000 ($225,000 past, $225,000 future).
6. Perez v. Farrell Lines - a 58 year old fell and sustained a traumatic brain injury and a shoulder injury. The jury verdict of $650,000 ($400,000 past, $250,000 future) was affirmed.

We have reviewed the six cited cases in detail and urge readers to do so as well. In many respects, they deal with injuries different from those ruled on in Cusumano v. City of New York. We do not believe they support the decision to deduct nearly half a million dollars from Lt. Cusumano.  The jury that heard this case listened to each of the witnesses (including of course the plaintiff and his treating doctor), assessed the credibility of each and every witness and deliberated carefully among themselves before rendering their verdict. That's how our legal system works in New York injury cases.

An appeals court may disturb the jury's verdict only when it finds the amount deviates materially from reasonable compensation (CPLR 5501). To make that finding, the appeals court must have a basis. It cannot pull numbers out of thin air. It should explain its reasoning. Merely citing cases, some of which involve similar injuries and some of which involve injuries not at all relevant is not right. It is neither instructive to the bar and the public nor is it even academically proper.

More and instructive reasoning must be given so that the bar and the public can be guided by the upper and lower limits appeals courts are likely to set in New York injury cases. When that's done, there will be a reduction in trials as more cases are settled because everyone knows the limits.

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Bronx and Kings Counties are among the few venues that New York personal injury attorneys (those representing plaintiffs, that is) will tell you are favorable counties for much larger than average-sized pain and suffering verdicts. Westchester, Rockland, Nassau and many upstate counties are among the worst (i.e., the juries are stingy in their verdict amounts). These "rules of thumb" do not always hold true, of course. And not so at all in a recent car accident case.

In Shifrel v. Singh, a 49 year old man was stopped in traffic on July 22, 2004 on the Cross Bronx Expressway when he was hit in the rear by defendant's car. He complained of left shoulder pain at the hospital that day, followed up with an orthopedic surgeon, had an MRI that showed a torn rotator cuff and eventually had surgery to repair the tear. Following seven weeks of physical therapy, Mr. Shifrel tried to resume his pre-accident way of life which had included sports such as softball and basketball and riding a motorcycle. He could not and his doctor testified that his restricted range of motion was permanent.

Here's a comparison of normal and torn rotator cuffs:

Although the defense had an opportunity to examine the plaintiff with its own doctor before trial, that doctor was not called to testify at the trial and the plaintiff was given a missing witness charge. That's where the judge tells the jury that, when a witness under the control of one of the parties is not called to testify when it's expected he would have been, the jury may draw negative inferences from that failure. In other words, the judge tells the jury that it will be permitted to conclude the defense was trying to hide testimony that may have been favorable to the other side. Here, the defense doctor probably wold have agreed with the plaintiff's doctor's testimony.

Usually the missing witness charge when the witness is a defense doctor will be very damaging to the defense. It allows the jury to "buy" everything the plaintiff's doctor says as to causation, permanence and severity and it suggests to the jury that the defense doctor would have said the same thing.

In this case, the missing witness charge meant nothing. It was no help to the plaintiff. The jury returned a verdict of $5,000 for all of plaintiff's pain and suffering! And that sum was just for past pain and suffering (3 1/2 years). The jury's verdict for future pain and suffering was -0-.

Naturally, the plaintiff appealed. The appellate court held that indeed the past pain and suffering sum was too low - it found $50,000 was a reasonable figure for past pain and suffering. Less than what plaintiff's counsel urged but at least the appeals judges saw the impropriety of only $5,000 for past pain and suffering.

As to the jury's failure to award any amount at all for future pain and suffering, though, the appeals court affirmed the verdict. It found that plaintiff was not entitled to any award for future pain and suffering because of the "lack of permanency of plaintiff's injuries."

The $50,000 ultimate award in this case is way out of line with other rotator cuff tear injury cases in New York. For example, see our reports here and here. As you can see, when surgery occurs after a rotator cuff injury, in relatively routine non-complicated cases (medically),  the sustained verdicts in New York injury cases for middle-aged persons appear to fall in the $150,000 to $300,000 range.

Inside Information:

• as this was a car accident case, the nuances of Insurance Law Section 5102 applied (see Eric Turkewitz's terrific expose of this statute) and the jury found that plaintiff had met the statutory threshold because he suffered an injury of a non-permanent nature that prevented him from preforming his usual and customary activities for at least 90 of the 180 days after the accident
• the appeals court concluded that the jury's finding that the so-called 90/180 standard had been met meant that the jury specifically concluded plaintiff's injuries were non-permanent
• even if the jury did make a finding of non-permanence (a) the plaintiff's doctor testified - unchallenged (remember the missing witness charge) - that plaintiff's injuries were indeed permanent and (b) non-permanence does not preclude any and all pain and suffering into the future; it would allow for an award of 10 years of pain, 20, one, whatever

Really Inside Information:

• the defense offered $65,000 to settle just before trial (acceptable to plaintiff's counsel but rejected by the plaintiff himself)
• after the verdict, plaintiff's counsel would have settled for $50,000 (not offered)

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Slip and fall injury cases in New York are quite common. They are also among the most difficult to win for the injured party. All three cases in the latest round of slip and fall trial court decisions released in New York are from accidents in the winter of 2006-2007. Two were dismissed on motions for summary judgment by the defense and only one is being permitted to proceed to trial.

In Officer v. 450 Park LLC, a woman arrived at work just before 9 a.m. on February 14, 2007, took a few steps into the lobby of her building and promptly slipped and fell on the marble floor severely injuring her shoulder.

Building lobbies, with marble floors, are the subject of two new cases:

In her ensuing lawsuit against the building owner and manager, she claimed that on this wet, snowy, rainy day there should have been a safety mat by the entry door to prevent her fall.

In dismissing Ms. Officer's case (after depositions were held but before trial), the judge noted:

• video and still film supported the security guard's statement that mats were placed at the two entrance doors
• plaintiff did not know where she fell: whether on a mat or the marble
• defendant had mopped the floor 20 minutes before plaintiff fell

There is no legal requirement that property owners provide a constant remedy to the problem of water being tracked into a building in rainy weather; nor is there an obligation to continually mop up all tracked in water. And in general there's no obligation to put down floor mats when it rains.

To win a case like this, a plaintiff must show:

1. the defendant caused or created the dangerous condition or
2. had actual (someone told him) notice of the dangerous condition (the wet floor) or
3. had constructive notice - i.e., the condition was present for a long enough time that the defendant should have known about it and had time to correct it.

It's extremely rare that plaintiffs ever prove a defendant caused or created a dangerous condition in a slip and fall case and it's nonexistent in tracked-in rainwater cases. Actual notice is also rare - only a few times in many years of practice have I had a case in which evidence was uncovered of someone actually telling the premises owner of a dangerous condition before my client fell. So, we are almost always left trying to win slip and fall cases using constructive notice as a basis for liability.

In the Officer case, the judge held that the defendant knew of the dangerous condition before plaintiff fell but no liability was possible because the judge said that the defendant took reasonable steps for the safety of its customers - it placed mats down and mopped the floor.

In a similar case, Brenowitz v. Commerce Bancorp, a woman slipped and fell on a wet marble floor at the defendant bank at 2 Wall Street in Manhattan on a rainy day -  December 1, 2006. She fractured her wrist and sued the bank claiming that liability should be imposed because the bank's marble floor was unusually slippery and dangerous when wet. In dismissing her case, the judge noted that the bank neither created the wet condition, nor did it have actual or even constructive notice of it. In any event, the decision notes, the bank had umbrella stands available, a porter who would mop when the floor was wet (and he was not advised to do so that day) and the entrance area was carpeted.

Umbrella stands can help property owners win in slip and fall cases:

The one new case that's being permitted to go to trial is Stellman v. New York City Transit Authority. In that case, on February 15, 2007 (the day after Ms. Officer fell - see above case), a man slipped and fell on ice that had formed on the steps of a city subway station at West 86th Street.

Here's what the icy steps may have looked like for Mr. Stellman:

His claim against the city was that its employees knew or should have known of the ice formation because snow and freezing rain from the day before ended 15 hours before Mr. Stellman's fall. Since there was no new snow or ice after that and since the temperature did not rise above 30 degrees once the snow and rain stopped, plaintiff (through an expert in meteorology) showed to the court's satisfaction that the city's employees had enough time to clear up the ice so as to prevent plaintiff's fall. The plaintiff did not thereby win his case. He simply survived the defendant's motion for a dismissal at this early stage and he's now allowed to proceed to trial. There, the jury will hear testimony, see exhibits and determine for itself whether or not to impose liability against the city.

Slip and fall cases - especially those arising from wet floor or stair surfaces - often result in very serious injuries such as hip fractures, wrist fractures and shoulder injuries. Injured parties often think that simply because they fell on someone else's property which was dangerously wet there must be liability against the property owner. Not so. Not even close.

The law is very much in favor of the property owner in these cases and there are several hurdles (such as the "notice" requirements) that a plaintiff must jump merely to be allowed to present his case to a jury. Even then, of course, the verdict may be in favor of the defense.

The three recent cases discussed herein are well in line with the trend in New York favoring the defense in slip and fall cases. Both injured parties and their lawyers should be guided accordingly and approach these cases with caution and a realistic view of their chances of success.

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Update: Following our recent post on shoulder injuries, now comes a new report on two claims that settled after trial - one for $300,000 and the other for $200,000.

In Crisostomo v. The Salvation Army (Supreme Court, Bronx County; Index # 13825/05 and 17276/05), a 40 year old man was driving his car with his 37 year old wife as a passenger when they were rear-ended by another vehicle.

Mr. Crisostomo sustained tears of his anterior glenoid labrum, rotator cuff and supraspinatus tendon of his right shoulder.

He underwent arthroscopic surgery and six moths of physical therapy. The jury awarded him $600,000 for his pain and suffering, evenly split between past and future. While post-trial motions were pending in which the defense asserted that the jury award was excessive, the parties compromised and settled for $300,000.

Mrs. Crisostomo sustained a partial thickness rotator cuff tear, underwent arthroscopic surgery for a subacromial decompression and bursectomy and then six months of physical therapy.

Subacromial Decompression Surgery:

The jury awarded $350,000 for her pain and suffering ($200,000 past; $150,000 future) and then, while post-trial motions were pending, like her husband, she compromised, and she settled for $200,000.

While each case is different and each injury is unique resulting in pain and suffering that is also unique, we believe these awards for shoulder injuries in New York reflect average, reasonable pain and suffering amounts and can be used as a guide in evaluating damages where the parties and injuries bear significant similarities.

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Jurors in a recent shoulder trauma case tried to a verdict awarded $2,162,000 for pain and suffering involving a torn rotator cuff.

                                                                                            Torn Rotator Cuff:

In another late 2008 jury verdict, $1,100,000 was awarded for pain and suffering for a similar injury.

These pain and suffering verdicts appear to be well above the norm and may be modified downward on appeal. Neither case resulted in a court decision that has been publicly reported; however, we have obtained detailed information about each case, both of which are discussed below.

In Bauer v. NYC School Construction Authority (Supreme Court, Kings County; Index # 4119/05), after a seven day trial the jury determined that a 46 year old laborer who fell off a scaffold at a construction site was entitled to $2,162,000 for his pain and suffering ($650,000 past pain and suffering plus $1,512,000 future pain and suffering). Plaintiff's injuries included a tear of his left, non-dominant shoulder's rotator cuff that required three surgeries and left him with residual arthritis, fibrosis (a thickening of the connective tissues) and scar tissue).

In Kirk v. Bed Bath & Beyond, Inc. (Supreme Court, New York County; Index # 10694/06), a 69 year old actress was walking through an open interior doorway when the doorway's metal frame fell on her and injured her shoulder. She was awarded $1,100,000 for her pain and suffering ($300,000 past pain and suffering plus $800,000 future pain and suffering). She underwent arthroscopic surgery which disclosed an irreparable torn supraspinatus tendon and during which a piece of the clavicle was excised. A second surgery was required two years later - a palliative release of the shoulder's biceps and an anterior capsulectomy (removal of some membranes). Her orthopedic surgeon testified at trial that the falling door frame caused permanent inflammation of the shoulder which could not be fixed by more surgery. While the $1,100,000 verdict may well be reduced on appeal, the defendant cold have gotten out much cheaper with a settlement: the plaintiff offered to settle for $750,000 but the defense offered only $650,000 before the verdict.

While each case is different and each person's pain and suffering is unique, the appellate courts in New York will look to awards in prior cases for guidance when ruling on appeals from jury verdicts that are claimed to be excessively high or inadequately low. If either the Bauer or the Kirk cases discussed above is ruled on by an appellate court, it's likely that the following cases will be relevant:

• DeSimone v. Royal GM, Inc. - $350,000  pain and suffering verdict ($100,000 past and $250,000 future) upheld on appeal for a 30 year old hotel guest services agent in a car accident who sustained a torn rotator cuff and underwent an unremarkable arthroscopic surgery. She made a good recovery, was able to return to work within five months and required no further medical treatment after one year.
• Miller v. Weisel - $700,000 pain and suffering verdict ($200,000 past and $500,000 future) for Erb's palsy suffered by a boy due to medical malpractice at birth. He was 13 years old at trial and the appellate court reduced the jury's verdict from $1,200,000 to $700,000.
• Chase v. Mullings - $190,000 pain and suffering verdict ($60,000 past and $130,000 future) for a 58 year old woman in a bus accident who sustained a partial tear of her left, non-dominant rotator cuff requiring arthroscopic surgery.

Personal injury lawyers such as New York's Eric Turkewitz will tell you that just because you read about a verdict in the news, or it's reported in blogs such as here, does not mean the plaintiff will actually get the money. Under CPLR 5501(c), as Turkewitz notes, and as we have previously discussed, the appellate courts can rule that a jury verdict deviates from what would be reasonable compensation and require a new trial on damages unless the parties stipulate to the amount determined reasonable by the appellate court.

We will follow the recent verdicts discussed here for further treatment by the appellate courts and report if and when there are new developments.

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