Appeals Court Dismisses $2,750,000 Verdict for Facial Injuries; Student Assumed Risk of being Hit by Softball Bat

Posted on September 24, 2011 by John Hochfelder

In 2009, a Bronx County jury awarded a 16 year old girl $2,750,000 for crush injuries to her face after a fellow student hit her with a bat during softball practice at Walton High School (shown below).

Now, in Navarro v. City of New York (1st. Dept. 2011), the entire suit has been tossed out. The appellate court held that the risk of being hit by a practice swing of a bat was assumed by plaintiff, an experienced softball player who admittedly knew the risks inherent in the sport.

We discussed this case shortly after the trial, here, and predicted that the case would be dismissed on appeal.

The city had also sought a reduction of the $2,750,000 pain and suffering award but that issue was rendered moot by the liability reversal. The parties did, though, brief the damages issue (since the court could have affirmed the liability award and then would have had to address the amount of damages).

Plaintiff cited Storms v. Vargas (2d Dept. 1998) [$4,000,000 for 31 year old with massive facial injuries]  in support of her argument that her $2,750,000 verdict should be affirmed. In that case, though, the injuries were much more severe than those sustained by Ms. Navarro. Not only did the 31 year old police officer Stephen Storms undergo 26 surgeries for his injuries but also his left eye was surgically removed and he was left with an artificial eye.

Inside Information:

  • The jury had apportioned liability 75% to the city and 25% to the student who swung the bat and they found that plaintiff had not been comparatively negligent.
  • The accident happened in June, plaintiff returned to school in September and she resumed playing softball two months later
Tags: , ,

Dance Club Injuries in New York - Appellate Courts Dismiss One Case but Allow Other Case to Proceed

Posted on December 17, 2009 by John Hochfelder

Perhaps the term “dance club” is a misnomer here; we’re really talking about moshing (also called slam dancing) which is an informal term referring to dancing to music in a violent manner by jumping up and down and deliberately colliding with others.

Sounds like a sure-fire way to get hurt and that’s just what happened in two cases that have now made their ways up to the New York appellate courts. Each, though, came to a different result.

In one case, a 36 year old concertgoer, David Schoneboom, was injured at a club in Manhattan listening to his favorite group, “The Crumbsuckers.” Earlier in the evening he had watched from the balcony performances from the first two groups: “Kill Your Idols”  and “Subzero.” Why the balcony? Simple. Schoneboom said that it was too violent on the floorwhere he saw moshing was ongoing.

Nonetheless, when his favorite group came on to play, he admits he went down to the floor near, but not into, the area where the moshing was taking place. And that’s when he got shoved from behind into the side of his knee and ended up with a torn anterior cruciate ligament and a torn meniscuswhich required reconstructive knee surgery.

Schoneboom sued the club claiming that it was the club’s negligence in failing to prevent the violence which caused his injury. Not so, said both the trial judge who dismissed the complaint and the appellate court which upheld the dismissal in Schoneboom v. B.B. King Blues Club & Grill.

As we mentioned, here, the lower court determined that Mr. Schoneboom had assumed the risk of being injured,  because he fully appreciated the risk of colliding with a slam dancer and nonetheless elected to place himself in close proximity to that activity.

In the other recent appellate court case involving injuries related to moshing, a 15 year old boy was injured at Club Warsaw in Brooklyn when attending a concert by the group “Senses Fail.” The boy, Elliot Rishty, claims he placed himself 4-5 rows away from any moshing but that the mosh pit spread and he was then elbowed or struck in the nose by a moshing participant. He sued.

The trial judge found that the alleged occurrence was not foreseeable and therefore dismissed the complaint. The appellate court, though, in Rishty v. DOM, Inc., reversed and ruled that a trial should be held to determine whether the defendant should have been aware of and controlled the conduct of its patrons and, if so, whether the failure to do so was a proximate cause of Elliot’s injury.

In an unavailing argument, the defense urged that even if the spread of the mosh pit violence were foreseeable and controllable, Elliot had assumed the risk of any alleged moshing that may have been involved in causing his injury.

The decisions in these two cases, coming within two weeks of one another by two different appellate panels, appear to be irreconcilable. So, we contacted the attorneys, obtained facts not disclosed in the decisions and reviewed the appellate briefs of the parties.

Here are some of the factors that appear to distinguish the cases from one another: 

  • Martin Schoneboom was 36 years old at the time, had participated in moshing at over 30 concerts and saw violent moshing escalating throughout the evening before deciding to stand near the mosh pit.
  • Elliot Rishty was only 15 years old at the time, there’s no evidence he’d ever participated in moshing and it appears that moshing may have been ongoing at his concert for only 15 minutes or so before he was struck.

When there are important areas of law on which different appellate department panels rule opposite one another, then New York’s highest court, the Court of Appeals, may decide to accept an appeal in one of them so as to resolve the issues for the entire state and bind all appellate divisions (there are four of them).

In the two  cases discussed here, it’s unlikely the Court of Appeals would accept such an appeal. The issues as presented in these two cases do not appear to be that far-reaching and the different factual scenarios may explain the contrary holdings.

Rishty v. DOM, Inc. is now headed for trial. We will report on future developments – either a settlement or a trial verdict - and we will continue to explore related assumption of risk case decisions as they are issued.

Tags: , ,

Facial Bones Fractured - $2,750,000 Pain and Suffering Verdict for 16 year old Hit by Bat in School Softball Practice

Posted on February 10, 2009 by John Hochfelder

On a beautiful spring day, 16 year old Chelise Navarro had just finished her turn at bat during high school softball practice at a New York City high school. She handed her bat to the next player who took a full practice swing and .... You know what happened next. Bam. Smash. Crush. Bones broken. Chelise took a full, powerful bat swing right into her face and sustained a crushing fracture of of the bone under her left eyelid, displacement and bowing of the zygomatic arch (which forms the prominence of the cheek) and a fracture of her maxillary sinus.

Let's take a look at some of these facial bones:

In Navarro v. City of New York (Supreme Court, Bronx County; Index # 25776/04; 11/25/08), Chelise claimed that the New York City Department of Education was liable for her pain and suffering injuries because her gym instructor didn't properly supervise the other students. And she won her case when the Bronx County jury (said by a  character in the movie "Bonfire of the Vanities" to be the best juries for plaintiffs because they believe in the redistribution of wealth) awarded her $2,750,000 for her pain and suffering ($750,000 past, $2,000,000 future).

A post-trial motion is pending as we write and no matter what the judge decides, in my experience I can tell you that there will be an appeal of this case. Defense counsel is adamant that there was no liability on the city's part - that fault should rest only on the student who whacked Chelise in the head.  I think the city is right and will succeed on its appeal to have this case thrown out. Even if liability is upheld, though, the appeals court will very likely find that the pain and suffering damages awarded were excessive and that they should be reduced substantially.

A review of all of the reported and many unreported cases that dealt with jury awards for facial injury pain and suffering indicates that the sustainable range for most of the significant facial injury cases is $200,000 to $500,000.

Of course there will be an isolated case here and there with much higher or lower recoveries that are sustainable but they are the exception, not the rule. For example, there's the case of Storms v. Vargas (2d Dept. 1998) in which an appeals court upheld a $4,000,000 Kings County pain and suffering verdict for a 31 year old police officer. But that case was atypical in that the plaintiff there was in a high speed emergency vehicle accident when his face was thrust into a metal and glass speedometer and  his eye, face, nose and forehead were all crushed and had to be surgically rebuilt. By the time of trial, he had already undergone 26 surgeries, wold likely need 16 more. He was, as the court declared, "a patient for life." Clearly, that case is extraordinary.

Here's what happens when bones in the face are so broken that surgery with metal insertions (i.e., open reduction internal fixation) is needed:

And here are some of the more typical and recurring facial injury cases which, as you will see, end up with sustainable verdicts in the $200,000 to $500,000 range:

  • Resnick v. Linkow (1st Dept. 2006) - $400,000 ($150,000 past, $250,000 future) pain and suffering award for a 41 year old patient in a dental malpractice case in which plaintiff claimed a nerve was penetrated during dental implant surgery leaving him with permanent facial numbness, a drooling sensation and facial itchiness. The New York County jury had returned a verdict of $2,000,000 but the trial judge reduced it to $1,000,000 and then the appeals court even further.
  • Angerome v. City of New York (2d Dept. 2002) - $500,000($200,000 past, $300,000 future) pain and suffering award for a 15 year old passenger in a high speed car accident who sustained a traumatic injury to her jawbone, a left angle fracture and a right para-symphsis fracture. Her jawbones had to be wired shut for eight weeks, she had a second surgery to tighten the arch bars in her jaw and she was left with a permanent clicking and muscle spasms around her jaw. The Queens County jury had awarded her $2,250,000 for her pain and suffering  but the appeals court substantially reduced that figure finding that the jury's award deviated materially from what would be reasonable compensation.
  • Mancusi v. Miller Bewing Co. - $500,000 ($200,000 past, $300,000 future) pain and suffering New York County jury verdict affirmed for a taxi cab passenger whose face was thrown against the Plexiglas partition separating the front and rear seats. She had lacerations to her face and inside her mouth, parasthesias affecting her chin and lip, trauma to seven teeth and internal derangement of her temporomandibular joint ("TMJ"). After extensive dental surgery, Ms. Mancusi was left with a permanent limited ability to open her mouth and the appeals court found that the $500,000 verdict was reasonable.
  • Cicalese v. Carter (2d Dept. 2004) - $105,000 ($35,000 past, $75,000 future) pain and suffering award for a woman in a dental malpractice case who claimed that her dentist caused her TMJ when he placed a bridge into her mouth too forcefully. The Suffolk County jury had awarded $200,000 for Ms. Cicalese's pain and suffering but the appeals court reduced that sum apparently affected by the fact, not reported in the decision but found by me after searching through court records on file, that the plaintiff had been involved in a huge car crash three years before she sought the bridge treatment and that in the car accident she had huge facial injuries including a fractured cheekbone that required surgery. On top of that, there was evidence that three years before the alleged malpractice the plaintiff had complained of TMJ-like symptoms and was advised to see a TMJ specialist but that she failed to do so. I'd say this plaintiff was lucky to walk away from her dental malpractice case with any verdict at all.

UPDATE: On September 8, 2011, Navarro v. City of New York was reversed on liability grounds and the entire case has been dismissed. Here is the appeals court decision and here is a new article on this case.

Tags: , , , ,