Another Subway Accident - $5,950,000 Pain and Suffering Verdict for Man Struck by Subway Car (after returning from methadone clinic and drinking pure rum)

Posted on May 1, 2009 by John Hochfelder

It never ends, does it? Another careless person fell onto the New York City subway tracks and was grievously injured. Then he lawyered up, sued the city and a Brooklyn jury recently found the city's motorman 70% at fault with the result that the injured fellow was awarded $5,950,000 for his pain and suffering.

Walter Olson's Overlawyered follows these types of cases better than anyone, he finds cases no one else does and he points out the policy considerations we should be thinking about but juries don't. And we have recently addressed the whole issue of subway accidents and resulting large jury verdicts.

In this case,  Sanders v. New York City Transit Authority (Index # 34003/03; Supreme Court, Kings County; 3/6/09), the jury heard evidence that on December 12, 2002, James Sanders fell onto the tracks as a subway car in Brooklyn was coming into the station at about 15 mph. The jury was also apprised of the facts that Sanders had been returning from methadone treatment and had drunk pure rum before entering the station (a fact he initially denied).

Then, there were these additional facts:

  • Sanders could not recall why he fell
  • the motorman's speed was no more than 15mph
  • witnesses testified that the train was no more than 20 feet away when Sanders fell onto the track

This is what it must have looked like just before impact:

So how could any jury conclude that the 41 year old Sanders was not 100% at fault for his own injuries? The answer: the "last clear chance" doctrine. That's a long established legal principle, related to the concept of comparative negligence (the apportionment of negligence between plaintiff and defendant) that says a plaintiff may win when, despite the plaintiff's own negligence, the defendant was aware of the danger faced by plaintiff and negligently failed to take available means to avoid the accident.

The defense argued that the train's motorman could not have seen Sanders until it was too late and that the last clear chance doctrine was inapplicable. After six days of trial, the jury disagreed and found plaintiff only 30% at fault.

As I said, the injuries were grievous, including:

  • right leg amputation at the knee
  • nerve damage causing permanent blindness in one eye

Clearly, the injuries sustained and the pain and suffering Mr. Sanders will endure for the rest of his life are enormous. Therefore, I hesitate to mention, but many have this opinion, so it must be asked:

Wouldn't accidents like this be eliminated by waiting for the approaching subway car away from the platform, in the area of this woman?

And then there is a significant policy issue too. Should a plaintiff whose own negligence contributes to an accident and his own injury be permitted to recover money damages from a defendant who is also partially at fault. New York has long said yes and juries simply assign respective percentages of fault to the plaintiff and defendant and then the plaintiff recovers accordingly. In other states, such as Virginia, where prominent personal injury attorney Doug Landau discusses this issue and this very case, there would be no recovery at all for a plaintiff found to be as little as 1% at fault.

The "gross" pain and suffering award (i.e., the total before reduction for plaintiff's percentage of fault) was $8,500,000 ($2,500,000 past; $6,000,000 future). Applying a 30% reduction results in a $5,950,000 pain and suffering verdict for the plaintiff.

As is often the case, both in big damage cases like this one and in cases in which plaintiff's own conduct appears to be instrumental in an accident, there will be an appeal. We will follow this case as it makes its way through the appeals process and report back with any significant dvelopments.

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Leg Amputated After Drunk College Student Struck By Subway Train - $2,300,000 Pain and Suffering Jury Verdict

Posted on February 19, 2009 by John Hochfelder

A college student, Dustin Dibble, was out on the town for four hours drinking with his buddies, he got drunk (blood alcohol level more than two times the legal limit for driving), ended up on the subway tracks (he doesn't know how he got there) and lost his leg below his knee when he was run over by a New York City subway train. This week, a Manhattan jury awarded him $2,300,000 for his pain and suffering. The jury found that while Dibble was 35% at fault, the subway  operator was 65% at fault and that the total pain and suffering damages for this below the knee amputation injury would have been $3,500,000 (were the city 100% at fault). Applying  the rules of comparative negligence, Dibble got 65% or $2,300,000.

And now, the New York Post, other newspapers, the blogosphere (here, here, and here) and even politicians are all abuzz about this case that appears outrageous to many.

The mayor of New York City has spoken out calling the jury's verdict  "incomprehensible" and suggesting that the issue of "personal responsibility [on Dibble's part]" should have but did not carry the day in court.

No doubt too, this case will bring up anew discussions among leading writers, academics and think-tankers who, such as Walter Olson, blogging at Overlawyered, often grapple with issues of personal responsibility and comparative fault in injury cases.

To put this case into some perspective, we need to look at a couple of leading appellate cases that dealt with similar issues. In Soto v. New York City Transit Authority, New York's highest court ruled that an 18 year old's reckless behavior (getting drunk, running after a subway train to catch up to it and board it and then getting struck by it) was not of such a nature as to constitute the sole legal cause of his injuries (bilateral below the knee amputations). Therefore, the court held that the train operator's duties were not vitiated and the plaintiff could try to convince a jury that the operator bore all or some of the responsibility for the accident. Line Mr. Dibble, the plaintiff in the Soto case claimed that even though he was drunk, the conductor could have and should have seen him in time to stop and was therefore negligent.

In a more recent case, Mirjah v. New York City Transit Authority, an appellate court found in favor of the subway operator. In that case, a drunk sitting on the subway tracks was killed when run over by a subway car coming into the station. The court dismissed the ensuing wrongful death lawsuit without a trial because it was undisputed that the train operator exercised reasonable care and the accident was unavoidable under the circumstances.

As to the damages for pain and suffering in traumatic below the knee amputation cases, it appears that the jury's evaluation was reasonable and that if the liability verdict is upheld (this case will be appealed), then the damages verdict will not likely be disturbed by the appellate court. For example, in Bondi v. Bambrick, the appellate court upheld a $9,750,000  pain and suffering damages award ($2,250,000 past, $7,500,000 future) for a  35 year old woman who was a passenger on a motorcycle struck by a drunk driver. She had been a very active woman, underwent nine surgeries prior to trial, was left with pervasive scarring and a wound at the amputation site that would never heal, was unable to have a permanent prosthetic, would require revision surgery every 18 months and was in permanent pain.

In Miller v. Long Island Rail Road, the appellate court ruled that $3,250,000 was proper for pain and suffering damages ($1,300,000 past, $1,950,000 future) for a plaintiff who suffered a below the knee amputation when he was nine years old and fell off a train and was crushed. The plaintiff was active in sports after the accident and became a medal-winning swimmer in high school and a member of the varsity track team.

So, back to the fault issues in these types of cases. Should these intoxicated plaintiffs even be permitted to present their claims to juries? Should their cases be dismissed? Should there be a law -- a statute -- that stops them from suing? These are some of the issues that will confront the courts, and society as a whole, time and again.

The defense in the Soto case argued (unsuccessfully) just these policy points:

  • When a person has been reckless, becomes drunk, should he be barred from the courthouse in these types of cases?
  • Does requiring defendants in these types of cases to take precautions conflict with other interests such as efficiency, or the safety of others not directly involved in plaintiffs' dangerous activities?
  • Would allowing plaintiff to recover deliver a message at odds with socially accepted norms or values.?

These issues will not soon disappear and we will surely be revisiting them as new cases are brought, new verdicts are rendered and, perhaps, new statutes are enacted.

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