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

On June 2, 2006 at 6:20 a.m., Helen Skillman was struck and killed by a New York City Transit Authority (NYCTA) bus backing up onto a sidewalk at the 165th Street terminal on Merrick Boulevard in the Jamaica section of Queens.

Here is the bus terminal where the accident took place:

Ms. Skillman, a healthy 79 year old, was on her daily trip from her home in Bayside to Merrick Boulevard where she fed and bathed her disabled aunt. After she got out at the terminal, Helen was struck as the bus backed up onto the sidewalk (a maneuver required when there was another bus parked next to it).

The driver never saw her before he struck twice - once in reverse and again when he moved forward and rolled over her. He stopped when passersby screamed.

Medics arrived within a few minutes and rushed their conscious but dying patient to the local hospital where she went into cardiac arrest. CPR was then performed but it was ineffective and she was pronounced dead.

In the ensuing lawsuit, Dowd v. New York City Transit Authority (Supreme Court, Queens County, Index # 20305/06), there were competing arguments as to fault for the accident:

1. Plaintiff (Skillman's surviving daughter, Deborah Dowd) claimed that the bus driver negligently reversed the bus despite a blind spot that prevented him from seeing any pedestrian who may have been behind the vehicle.
2. Defense counsel claimed that Skillman was at least partially at fault for walking into the path of a slowly backing bus that was visible and making a loud warning noise.

The jury found that the bus driver was 100% at fault and awarded $1,750,000 for pre-death conscious pain and suffering.

The defendants appealed claiming that:

• some comparative fault should have been assessed on the decedent's part and
• the pain and suffering award was excessive

Last week, in Dowd v. New York City Transit Authority (2d Dept. 2010), the liability verdict fully against the defendants was upheld; however, the pain and suffering award was conditionally reduced by $550,000 and now stands at $1,200,000.

In affirming the liability verdict against the bus driver, the court merely cited basic traffic laws (such as VTL Section 1211, which provides that a driver shall not back up unless he can do so with safety) and they stated that the jury's finding of fault was not contrary to the weight of the evidence.

As to the pain and suffering verdict, the court noted that the decedent was conscious and complaining of pain for 18 minutes - from the time the medics arrived until she went into cardiac arrest at the hospital.

In reducing the award by $550,000, the judges cited three relevant cases but before discussing them, let's take a look at the details of Ms. Skillman's injuries available to the judges but not mentioned in the decision, including:

• pre-injury terror (independent testimony established that she was aware of the bus bearing down on her and tried to get away and thus counsel asked the jury to include this as an element of the decedent's pain and suffering)
• she sustained partial amputations and crush injuries of both lower extremities, multiple fractures of both legs, her pelvis, back and ribs
• she also sustained an evisceration of her abdomen and massive bleeding
• she opened her eyes at the scene and said "help me" after which she remained awake during the entire ambulance ride while complaining of pain

Here are the three three cases cited in the decision as to the propriety of substantial awards for short periods of pre-death pain and suffering:

1. Perez v. St. Vincents Hosp. & Med. Ctr. of N.Y. (2d Dept. 2009) - $800,000 (reduced from a $1,500,000 jury verdict) for death following about 30 minutes of choking on food [discussed by us last year, here, in an article on substantial awards for short periods of pre-death pain and suffering]
2. Twersky v. Busche (2d Dept. 2007) - $1,000,000 (reinstating a jury verdict in that amount after a trial judge had reduced it to $650,000) for the death of a 47 year old pedestrian struck by a van who sustained massive injuries including a fractured femur, collapsed lungs and internal bleeding and who was conscious and in pain for 2 1/2 hours until anesthetized for surgery
3. Ramos v. LaMontana Moving & Storage, Inc. (1st Dept. 1998) - $900,000 (increased from the trial judge's reduction of a $3,000,000 verdict to $250,000) for 15-30 minutes of pain following a motor vehicle accident in which the decedent sustained excruciating crush injuries

Two other relevant cases that were not mentioned by the court are:

• Fa-Shun Ou v. New York City Transit Authority (2d Dept. 2003) - $365,000 for a woman struck by bus who for 15-30 minutes held her friend's hand and moved her lips before death from skull fractures and cerebral contusions
• McAndrews v. City of New York (2d Dept. 2002) - $1,000,000 for a 47 year old in car accident with multiple pelvic, rib and humerus fractures and several lacerated internal organs who was conscious and awake at the scene for about 40 minutes but died on the operating table 1 1/2 hours after the accident [decision reversed on other grounds by Court of Appeals]

Inside Information:

• The jury also awarded $250,000 in pecuniary, or economic, damages, an amount that was not challenged on appeal (there was some testimony as to the decedent's economic contributions to her daughter and grandchildren but it was minimal given that decedent was retired with a small pension).
• The defendants argued that evidence relating to the NYCTA's internal policies as to when to use spotters (employees who stood behind buses to help drivers back up) should not have been allowed but the appellate judges found that it did not result in an unwarranted verdict.
• The defense presented no witnesses in the damages portion of the trial while plaintiff called three (the EMT, a forensic pathologist and the decedent's daughter).
• Plaintiff's closing argument included a statement that if the jury were to assign even 1% of the fault to the plaintiff then "we can all go home tonight, open our windows, and we are going to hear people laughing at the New York City Transit Authority." The defense argued on appeal that this and other remarks were so inflammatory that they tainted the jury and required a new trial; however, this is one of those "remaining contentions" that the appellate judges stated at the end of their opinion are "without merit."

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Israel Ramos was minding his own business while out for a nice day’s drive in New York City on April 17, 1998 when, all of a sudden, his van flipped over on the Bronx River Parkway. Unbeknown to him, a car thief was being chased a few miles back by the New York City Police Department. 

The chase was sometimes at speeds in excess of 70 miles an hour. When passing Mr. Ramos, the car thief clipped his van and it flipped over. 

Stumbling out of his van, Mr. Ramos clutched his left hand and saw blood all over. And that’s about all he remembers except for being in excruciating pain, being rushed by ambulance to the nearest hospital and undergoing the first of five surgeries to try to save his hand.

His hand (except for the amputation of his pinky) was saved but he ended up with a permanent claw-like contracture, like this:

The car thief was carted off to jail and, Ramos ended up suing the city based on his claim that the police officers had acted in reckless disregard for the safety of others in their pursuit of the car thief at high speeds through dense areas and contrary to internal department rules.

The “reckless” disregard” standard is significantly more stringent than mere negligence and that’s because as a society we do not want to hold police officers liable for every mistake they make in seeking to discharge their often very dangerous, life-threatening duties. We have determined by legislative enactment (in this case, Vehicle and Traffic Law 1104) to give police officers a break in lawsuits against them for injuries they cause to others by making the injured plaintiffs prove that the cops were more than negligent – that their actions amounted to a reckless disregard for the safety of others.

The police win the overwhelming majority of injury cases when plaintiffs are faced with the reckless disregard standard. In Ramos v. City of New York, though, Israel Ramos won by convincing the Bronx County jury that the officers in his case did indeed act with reckless disregard. Liability was apportioned 40% to the city and 60% to the car thief. As to pain and suffering, the jury awarded Mr. Ramos $4,000,000 ($2,500,000 past – 10 years, $1,500,000 future – 14 years).

After trial, the city asked the judge to dismiss the case notwithstanding the verdict arguing that the plaintiff had not met his burden of proving recklessness and that the car thief’s actions were the sole cause of the accident and injuries. Alternatively, the city also urged that the verdict figure was unreasonably high. Judge Kenneth Thompson granted the defendant's post-trial motion and dismissed the case stating that plaintiff failed to show it was the cops who caused the accident and not the criminal conduct of the car thief.

Plaintiff appealed the trial judge's dismissal and won: the jury verdict in favor of plaintiff on liability grounds was reinstated but that’s when the appellate judges also determined that the verdict sum was too high. In slashing the $4,000,000 pain and suffering verdict by two-thirds to $1,350,000 ($850,000 past, $500,000 future),

here is how the appellate judges in Ramos v. City of New York described the injuries:

                “injuries to the left, nondominant hand, including severance of the left pinky finger.”

There was much more to it than that – plaintiff and his surgeon testified that Ramos:

• suffered severe crush injuries which decimated most of the soft tissue in his hand and destroyed his ulnar nerve and an artery
• is in constant pain and requires lifelong medication
• cannot care for himself in many ways and feels he’s a burden on others who dress him and cut his food.

Describing Mr. Ramos’s injuries as horrible and crippling, his lawyer asked the jury for $5,000,000 in pain and suffering damages. The jury’s verdict of $4,000,000 wasn’t far off.

In purporting to explain or justify the huge reduction of the jury verdict, the appellate judges simply cited two prior cases and stated that the verdict deviated materially from what is reasonable compensation for the injuries.

Those two cases – Bradshaw v. 845 U.N. Ltd. Partnership (amputation of distal portion of ring finger with hypersensitivity – verdict of $50,000 increased to $85,000) and Cabezas v. City of New York (wrist fracture, two surgeries, disabilities similar to Ramos’s - $900,000 jury verdict reinstated after trial judge had ordered a reduction) were both reviewed by us before, in posts on finger amputation cases here and wrist injury cases here. Neither is particularly useful in analyzing the verdict in Ramos v. City of New York.

A more relevant analysis of prior cases would have included the following (all reviewed in our post on hand injury cases here):

• Fang v. Heng Sang Realty Corp. - $1,050,000 for 45 year old with nerve, tendon and muscle injuries resulting in clawing deformity
• Kim v. City of New York - $700,000 for 15 year old with ulnar nerve damage and boutonniere deformity
• Brown v. City of New York - $1,200,000 for 51 year old with nerve injuries, RSD and clawed hand.

As you can see, these three cases don’t necessarily indicate that the appellate judges in Ramos reached the wrong result in determining that Mr. Ramos should receive $1,350,000. Each of these cases is, however, much more relevant factually than the ones cited by the court and they should have been discussed in the Ramos case so that the public, lawyers and trial judges could (a) understand the reasoning of the decision and (b) use it as a guide in evaluating similar cases so that quicker and fairer settlements may be made.

Inside Information:

• the defense presented no witnesses at trial (the police officers having already been called to testify by the plaintiff)
• the defense did not offer the testimony of their own doctor who examined the plaintiff before trial; the plaintiff’s doctor’s testimony was thus unchallenged (except for minimal cross-examination)
• during the trial, before the case was submitted to the jury, the city offered $250,000 to settle which despite his attorney’s advice to accept it the plaintiff rejected

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There are 26 bones in the foot. So the variety of foot injuries is huge - from crush and calacaneous fractures to a 5th metatarsal (little toe) fracture. And thus the range for verdicts and settlements for pain and suffering in foot injury cases is quite wide.

In a recent case, Lentini v. NYC Transit Authority (Supreme Court, Bronx County; Index # 18020/06; 11/3/08), $2,200,000 was awarded recently by a jury for a 76 year old woman who sustained a complex crush injury to several bones in her foot requiring four orthopedic and reconstructive surgeries to salvage her foot.

By contrast, in Crooms v. Sauer Bros. Inc. (1st Dept. 2008), the appellate court ruled on 2/28/08 that $75,000 for a fractured metatarsal and thrombosis (the formation of a blood clot - in this case, from the cast) does not deviate from reasonable compensation where an unemployed former transit worker on disability made a full recovery.

Let's take a look at those 26 bones in the foot.

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