On August 7, 2007 ten year old Roy Nelson, was sitting on a bench outside his apartment complex at 1125 East 229th Street in the Bronx when he was hit in the leg by a rock propelled at high velocity from a nearby lawnmower. It turns out that an employee of the housing development owner, the New York City Housing Authority (NYCHA), was mowing the lawn over a rocky area.
Roy’s father sued the housing authority on behalf of his son. The defendant conceded liability for the incident on the eve of trial and the matter proceeded to a trial on damages only.
On May 21, 2012, the Bronx jury awarded pain and suffering damages in the sum of $250,000 (all past – five years).
Both parties made post-trial motions – plaintiff argued that some award of future pain and suffering damages should have been made while the defendant argued that the $250,000 award was excessive. The trial judge denied both applications.
In Roy L. N., Jr. v. New York City Housing Authority (1st Dept. 2015), the appellate court upheld the jury verdict finding that $250,000 for past pain and suffering is not excessive. The issue of future damages was not addressed by the court because plaintiff did not appeal from the trial judge’s refusal to add such an award.
As set forth in the court’s decision, Roy sustained a spiral fracture of his left tibia along with soft tissue damage to the surrounding area. He was hospitalized for three days, underwent debridement of dead tissue and wore a hard cast for 6 1/2 weeks. He recovered with an unsightly keloid scar and his ability to engage in sports was significantly impeded because of the muscle and tendon damage.
Here are further injury details:
- The fracture was proximal/mid tibia, open and extended through the cortex.
- Initial hospital treatment included a massive irrigation and debridement to dilute the wound and remove dead tissue.
- After his hospital discharge, Roy had to use crutches to ambulate and stayed home in the summer with his leg elevated.
- Upon return to school in September, Roy was still casted and could not participate in any physical activities until January.
- The keloid scar was 2 1/2 inches long and one inch wide; it is permanent and “cannot be improved.”
- Roy still had leg pain at the time of trial but had returned to sports such as basketball within three months of the incident.
- In summations, plaintiff’s counsel asked the jury to award $300,000 for past pain and suffering plus $400,000 for the future. Defense counsel contended that plaintiff had fully healed and should be awarded no more than $50,000.
- Each side produced an orthopedic surgeon. Plaintiff’s expert, Leonard Harrison, M.D. testified that Roy had a mild residual condition that left him walking with his left foot tuned out and that he would always have pain when running, jumping and in cold weather. Defendant’s expert, Herbert Sherry, M.D., opined that plaintiff made an excellent recovery, needs no further treatment and has no limitations.
- Plaintiff admitted that he’d been playing sports ever since a few months after his accident and that he can “slash down the lane” in basketball and run fast as a wide receiver in football, “but not as fast” as he used to.