$500,000 Knee Injury Pain and Suffering Verdict Upheld on Appeal as to Reasonableness but Liability Verdict against City of New York to be Retried

Posted on August 23, 2010 by John Hochfelder

A few weeks after the 9-11-01 tragedy, Donna Fisk, then 49 years old, moved from Florida to New York to volunteer at what became known as Memorial Park,  (a site at the Office of the Chief Medical Examiner of the City of New York on East 30th Street) where remains were identified.

Mrs. Fisk's job was to input computer entries at an on-site trailer and give tours to new volunteers. After more than seven months and her last day of service, on May 16, 2002 Mrs. Fisk  tripped and fell over the tines (the "forks") of a forklift that extended six feet across her pathway about four inches above the ground at the site sustaining an injury to her knee that required surgery.

Here is a forklift with tines similar to those over which Mrs. Fisk fell:

Seeing two men with cameras peering into the site's entrance about to violate strict rules against photography at the site (enacted to protect the privacy of families of the deceased), Mrs. Fisk had left her trailer determined to stop them.

In her fall, Mrs. Fisk's knee hit the corner of one of the tines resulting in the following injuries:

  • significantly comminuted right patella fracture with the articular surface of the anterior pole in five bone fragments
  • ruptured patella tendon
  • open reduction internal fixation (ORIF) and tendon reattachment surgery
  • six inch surgical scar

Here are the several types of patella fractures:

Plaintiff's injuries from the accident left her with permanent disabilities including:

  • inability to stand for long periods preventing resumption of duties as church lector
  • instability in the knee joint making it difficult and painful to squat, kneel or bend
  • significant reduction of ability to hike which plaintiff regularly enjoyed before
  • pain in and about the knee (qualitatively and quantitatively different from pre-existing polio-related pain)

Mrs. Fisk sued the city and in a trial that ended on October 30, 2007, the Manhattan jury found that the city had breached its duty as a landowner in that the location of its forklift created an unsafe condition. Plaintiff was awarded pain and suffering damages in the sum of $500,000 ($250,000 past - 5 1/2 years, $250,000 future). On appeal, though, in Fisk v. City of New York, the city won a reversal of the verdict and a new trial on liability because the jury failed to reduce the award to account for plaintiff's own negligence.

The city had argued during trial that even if it was negligent so was the plaintiff in that she assumed a risk (tripping over the forklift) when it was unreasonable to do so in view of her pre-existing disability (childhood polio affecting her lower leg) and the fact that her conduct was unreasonable in proportion to any alleged danger (i.e., confronting people taking prohibited photographs).

The jury agreed that plaintiff was negligent but found that her negligence was not a proximate cause of her injuries. Those findings, the appellate court held, could not have been reached by any valid line of reasoning, were therefore irreconcilable and require a reversal of the verdict and a new trial on liability.

Without stating why, the appellate court concluded that the jury's damages award does not deviate from what would be reasonable compensation and that if plaintiff prevails on liability in a new trial then then the damages award will apply, subject to any reduction for a finding of liability against the plaintiff.

Here are the cases discussed by the trial judge (the Hon. Karen S. Smith) in her post-trial decision upholding the verdict:

Inside Information: The jury in Fisk v. City of New York awarded $500,000 for pain and suffering in a patella fracture case notwithstanding plaintiff's childhood polio that affected her same leg. Mrs. Fisk, formerly a school teacher, retired in 1990, classified as totally disabled.

  • Plaintiff argued that her pre-existing polio affected only her lower leg, not her knee and that she had not needed any walking aids before the accident.
  • The defense argued that polio affected plaintiff's hips, that before the accident she'd needed several leg surgeries (including a 1985 ankle fusion) and that she had been a slow walker with a limp.

 

 

 

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Hip and Pelvis Injuries - Pain and Suffering Verdicts and Settlements Vary Widely in New York

Posted on February 5, 2009 by John Hochfelder

It usually takes quite a bit of trauma or force to break bones in one's hip or pelvis. And when that happens, additional bones are often broken too. So it's particularly difficult to find court cases that isolate and deal with pain and suffering just for the injured hip or pelvis. But that's just what I've tried to do in this post.

Most recently, the appellate court in Denis v. City of New York (2d Dept., 9/16/08), affirmed a Kings County jury verdict for pain and suffering in the sum of $1,000,000 ($600,000 past, $400,000 future) for a 60 year old man who fell 15 feet from an unsecured ladder. He sustained a comminuted fracture (where the bone is broken into two or more pieces) of his acetabulum (the hemispheric concavity on the pelvis - see below) that articulates with the head of the femur (the thigh bone). Mr. Denis also suffered a displaced fracture of his ilium and fractures of his pubis.

Before going further, let's take a look at the anatomy of the pelvis:

And now a closer look at the anatomy of the hip:

Mr. Denis was hospitalized for 37 days, almost all of which time he was in traction with an external fixation device surgically implanted. His doctor testified at trial that without total hip replacement surgery Denis would never be able to walk without a limp.

Two significant trial court cases in 2008 dealt with hip fracture verdicts:

  • Kann v. New York City Transit Authority (Supreme Court, New York County; Index # 10334/07; 7/21/08) - $525,000 pain and suffering verdict ($175,000 past, $350,000 future) for an 86 year old woman who fell and suffered an intertrochanteric fracture of her hip that was addressed by open reduction internal fixation surgery.
  • Utsey v. City of New York (Supreme Court, Bronx County; Index # 28638/03; 4/21/08 verdict, 5/21/10 post-trial decision) - $2,500,000 pain and suffering verdict ($1,000,000 past, $1,500,000) future for a 77 year old woman who fell and fractured her hip. Seven years after her initial open reduction internal fixation surgery, she underwent a total hip replacement surgery. UPDATE: The trial judge issued a decison 5/21/10 refusing to reduce the damages and the case then settled 7/7/10 for 1,500,000.

Other recent appellate court cases in New York addressing hip and pelvis pain and suffering verdicts include:

Tushaj v. Elm Management Associates (2d Dept.; 2004) - $325,000 pain and suffering verdict ($200,000 past, $125,000 future) for a 54 year old man with a comminuted inter-trochanteric fracture that required open reduction internal fixation surgery. The Kings county jury had awarded plaintiff a mere $30,000 for his future pain and suffering and it took the appeals court to increase that sum. Plaintiff trial lawyers usually prefer to try cases in Brooklyn (Kings County) because it's widely thought that the jurors there are very liberal in their verdicts. Not this one!

Dooknah v. Thompson (2d Dept., 2000) - Here's another unusual case in which the appeals court found that a jury's verdict was too low. A 61 year old man was awarded $50,000 for past and future pain and suffering for his non-displaced acetabulum fracture and two pubic ramus fractures and it took the usually conservative appeals court (that governs appeals from Brooklyn, Queens, Long Island and Westchester) to increase the verdict to $200,000 ($75,000 for past pain and suffering and $125,000 for future). I would not want to suffer those injuries for $200,000 (nor would any sane person) but at least the appeals court recognized how inadequate the jury finding was.

Lopiano v. Baldwin Transport. (1st Dept., 1998) - $2,350,000 pain and suffering award for a 48 year old construction worker injured on the job when a four ton concrete catch basin pined against him. Plaintiff, who had served in Vietnam with the Marine Corps and was a very active and physical man, suffered multiple comminuted fractures of his left and right superior and inferior pubic ramus, together with a fracture adjacent to the area surrounding the foramen. Essentially, his sacrum and ilium were broken apart and thereafter failed to re-join symmetrically leaving him in lifelong persistent pain and totally disabled. The Bronx County jury returned a verdict of $750,000 past and $1,600,000 future pain and suffering but the trial judge reduced those awards to a total of $550,000. It took the stellar work of noted appeals attorney Jay Breakstone to convince the appellate court to reinstate the $2,350,000 verdict.

Here are some illustrations of the various surgical approaches to fractured hips:

These cases are good examples of how widely divergent juries in different counties can be. Jurors in Kings County are usually thought to be very generous but look at the Tushaj v. Elm Management case above. And the Appellate Division for the Second Department (hearing appeals from Long Island, Brooklyn, Queens and Westchester) is usually thought to be stingy but look what it did in the Dooknah v. Thompson case above.

So what's the lesson from all of this? Here it is: each case has to be analyzed, re-analyzed and compared against as many similar verdicts and settlements as can be found that deal with pain and suffering for the body part involved. Then, you must dig up documents, briefs and trial testimony to see what really happened in those cases, what the injuries and disabilities really were and how disabled for life the plaintiff is or how well he actually recovered. With all that information, you'll know when to hold 'em (and try the case to verdict) and when to fold 'em (and settle the case for the right number).

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