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

On September 27, 2003, Claude Williams, a 66 year old retiree, stepped off the curb on Madison Avenue near its intersection with 125th Street in Manhattan and was struck by a New York City Transit Authority (NYCTA) bus. His injuries, described below, were severe.

In the lawsuit that followed, Williams v. Hooper (Supreme Court, New York County, Index # 117924/04), the parties presented drastically different versions of the facts:

• Plaintiff claimed that the bus driver caused the accident by running a red light and going too fast at a distance of less than three feet from the curb.
• The driver argued that Williams himself caused the accident by stepping off the street smack into the side of the passing bus.

Here is a NYCTA bus pulling over to a curb:

Williams sustained significant blunt head trauma from the accident and was rushed by ambulance to  Harlem Hospital where he was diagnosed with:

• bilateral subdural hematomas later requiring surgery to burr four holes through his skull to relieve the pressure and drain blood from his head
• subarachnoid hemorrhage
• intracerebral hemorrhage
• facial fractures (sinus, left olecranon and left orbit)

Here is a look at the craniotomy in which burr holes remove blood clots from around the surface of the brain:

Ultimately, Williams was left with severe traumatic brain injuries (TBI) including:

• memory loss with both anterograde and retrograde amnesia
• dementia
• cognitive deficits causing an inability to perform simple tasks related to concentration

Additionally, Williams had difficulty walking and required a cane due to diminished sensation, reflex abnormalities and a resulting leg ulcer.

A Manhattan jury found the defendants (the bus driver and the NYCTA) 100% at fault and on March 10, 2009 awarded plaintiff $1,800,000 in pain and suffering damages ($900,000 past - 5 1/2 years, $900,000 future - 13 years).

The defendants did not challenge the amount of damages on appeal instead arguing that there were several significant errors by the trial judge that mandated a reversal of the liability verdict. The appeals court agreed in Williams v. Hooper (1st Dept. 2010) and the case has now been remanded for a new trial.

The appellate judges reviewed the trial testimony and concluded that the jury was "irrational" and "inexplicable" in finding that plaintiff bore absolutely no responsibility at all for the happening of the accident. Even assuming the bus driver was negligent, they wrote, plaintiff's own negligence was "indisputable" in view of the fact that he stepped off the curb into Madison Avenue without first looking for oncoming vehicles.

There was another reason the verdict was reversed - the trial judge's erroneous charge to the jury. The judge had told the jury that due to plaintiff's memory loss he could prevail on a lesser degree of proof. Following the ruling in Noseworthy v. City of New York (Court of Appeals, 1948), trial judges have routinely tried to mitigate the unfairness of effectively foreclosing recovery by a plaintiff who is otherwise unable to present a case because of amnesia stemming from the very accident for which he seeks to hold a defendant liable.

The Noseworthy charge (PJI 1:62), as it's come to be known, though, is only available where the memory loss has left a plaintiff unable to describe the occurrence and in this case Williams had testified and recalled the important facts of the accident at a pre-trial hearing, a pre-trial deposition and in the trial itself. Therefore, the majority of the appellate court judges ruled that the charge should not have been given and the jury should not have been told that it was permitted greater latitude in inferring negligence on the part of the bus driver. 

It's unlikely this case will settle, despite the fact that the damages award was unchallenged. The NYCTA will try to show the new jury that plaintiff bears substantial, if not full, responsibility for his own injuries. And the plaintiff will try to show that whatever small amount of fault he may bear, this accident was caused overwhelmingly by the bus driver.

Inside Information:

• The appellate judges split 3-2 on whether Williams was entitled to the Noseworthy charge and plaintiff could seek a ruling allowing the charge from New York's highest court, the Court of Appeals.
• The defendants' decision not to challenge the amount of damages was risky and all but precludes them from claiming it's excessive should a new jury find liability on their part and assess damages in a similar amount.
• Plaintiff brought in an accident reconstruction expert who advanced a safe-cushion theory of liability and concluded that the bus driver violated rules of basic safety when he approached the bus stop at less than three feet from the curb. He concluded that buses headed for stops should maintain a distance from the curb of at least 6-8 feet. The defense argued that imposing such a standard would violate common sense considering the location of many special bus lanes already existing in Manhattan and the duty of bus drivers to let departing passengers off as close to the curb as possible (on pain of incurring liability). The appellate majority would allow the advancement of this theory but the two concurring judges not only found no basis in law for such a theory and no regulations or industry standards to that effect but also they stated it would be unjust to allow future plaintiffs to rely on it in suing bus companies and drivers.

This case may take several twists and turns before ultimate resolution - a new trial is likely - and we will follow them all.

Update: Plaintiff asked the appellate court for a clarification as to the damages issue and on March 8, 2011, the appellate court issued a new decision in which it clarified that the new trial will address liability issues only and pain and suffering damages, if the new jury finds liability upon the defendant, are set at $1,800,000. Actual damages to be paid by the defendant would, of course, be reduced by plaintiff's percentage of comparative negligence, if any.

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With about 40,000 officers, the New York City Police Department is the largest police force in the United States. Serving more than 8 million people, its mission is to enforce the laws, preserve the peace, reduce fear and provide for a safe environment. Day in and day out, the officers put their lives on the line and they’ve long been known as “The Finest.”

Violent crimes are of course perpetrated notwithstanding superb police protection and no one expects a police force to guarantee the absence of criminal violence.

On several occasions, though, individual citizens who have suffered serious injuries have sued the city claiming that there was a negligent failure to provide police protection that facilitated a violent crime. Most of those cases are dismissed.

On July 20, 1996, at her apartment building in the Bronx, Carmen Valdez was shot three times at point blank range – twice in the face, once in the arm. Felix Perez, her ex-boyfriend, against whom she had an outstanding order of protection because he had harassed and assaulted her before, then shot and killed himself.

Carmen lived after a month in a coma but with horrific injuries:

• obliterated mouth and jaw requiring several reconstructive surgeries
• inability to eat or talk for a year
• permanent pain
• memory loss
• facial spasms
• post-traumatic stress disorder

Carmen, then 30 years old, sued and in Valdez v. City of New York claimed that the NYPD had a special duty to protect her from Perez. She argued that her case was viable because she relied upon a promise of protection made to her specifically. At trial, she testified that:

• the day before she was shot Perez had called and threatened to kill her
• she then left her apartment, called the police and was told to return home because the officers would immediately go out and arrest Perez
• she returned home
• the next day she left her apartment to take the garbage out when Perez grabbed her, dragged her back inside and then she was shot by Perez

The city denied ever receiving a call from Valdez advising that she'd received a death threat and of course denied giving her any advice or assurances as to what she should do or how they would protect her by arresting Perez.

On March 28, 2006, after a two week trial, a jury found that Carmen was telling the truth. They then ruled that the city and Perez were equally liable and they awarded pain and suffering damages in the sum of $8,000,000 ($3,000,000 past – 10 years, $5,000,000 future – 40 years).

Carmen’s twin five year old boys were with her when she was shot. They were awarded $750,000 each for their emotional and psychological pain and suffering. With medical expenses added, the total verdict was nearly $10,000,000 (with interest, the judgment exceeded $11,000,000).

In a post-trial motion, the city asked the trial judge to set aside the verdict on the basis that the police had no special duty to protect Valdez. Even if, as Valdez testified, the police had known about Perez’s prior threat to kill her, there could be no liability on the part of the police because Valdez could not show she justifiably relied upon any promise to protect her made by a police officer. Alternatively, the city argued that the damages awards were excessive and should be reduced. In a thoughtful opinion, Justice Lucy Billings denied the city’s motion in all respects.

The city appealed. This week, in Valdez v. City of New York (1st Dept. 2010), the entire judgment was vacated by the appellate judges and the case dismissed.

The key to the appellate court’s new ruling appears to be its conclusion that, even assuming the truth of plaintiff’s claim that she called and was told by an officer to return home, she failed to show that she justifiably relied upon the alleged promise of police protection and an immediate arrest of Perez. The judges noted that in the 24 hours after her alleged call to the police, plaintiff did not call back to find out if Perez had been arrested (“because I thought [the police officer] would be out there in the street looking for Felix”). Therefore, the court concluded, plaintiff knew that the police needed time to find and arrest Perez and thus there was no demonstration of any reliance at all, let alone “justifiable” reliance, on the officer’s alleged assurance.

Valdez v. City of New York will now proceed to a final resolution by New York’s highest court, the Court of Appeals. The 3 to 2 split among the five judges on the appellate panel gives the plaintiff a right to this final appeal. With more than $11,000,000 now at stake, plaintiff will certainly exercise that right. We will report on the ultimate resolution by the high court. UPDATE: On October 18, 2011, the Court of Appeals, in a divided decision, affirmed the dismissal of this case.

Inside Information:

• The jury found the city was not only negligent but also reckless. Under CPLR 1601, that means the city is liable for the entire damage award, not just its 50% share. If the Court of Appeals reinstates the verdict, it may also address this issue too as the city bitterly contended that there was no evidence of recklessness.
• The $8,000,000 pain and suffering award was among the highest ever in New York. The appellate court did not rule on the city’s claim that it was excessive but that issue, along with the propriety of the awards to the children, will need to be resolved if the Court of Appeals reverses the dismissal.
• There are four prior cases that the Court of Appeals has ruled on with issues similar to those in Valdez v. City of New York: Dinardo v. City of New York (2009), McLean v. City of New York (2009), Cuffy v. City of New York (1987) and Sorichetti v. City of New York (1985) (the only one of which allowed the claims to stand). The parties in Valdez v. City of New York each interpreted differently the application of these four cases, in particular under what facts and circumstances a special relationship may be found and/or justifiable reliance is needed to hold the city liable for injuries caused by a criminal’s violent acts or the failure of a governmental agency to do its job. The current Court of Appeals will now have the final word.
   

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After a seven week jury trial in Manhattan, construction workers Ryszard Kruzynski and Krzystof Belzek were awarded verdicts of $4,250,000 (Kruzynski)  and $6,125,000 (Belzek) for their pain and suffering for brain damage they sustained as a result of their exposure to lead fumes during demolition work at New York City's Grand Central Terminal.

After trial, though, the judge granted the defendants' motion to vacate the verdict and he ordered a new trial on the ground that plaintiffs' closing argument was prejudicial and that the damages awards were excessive. He found that the closing argument was so prejudicial that the defendants didn't get a fair trial (and therefore the issue of the amount of damages wasn't addressed by the trial judge).

Yesterday, an appeals court reversed the trial judge's finding and issued its decision in Wilson v. City of New York   holding that plaintiffs' attorney's comments about the defense medical expert, while improper (he was called a hired gun, a charlatan and a con artist) did not create a climate of hostility that so obscured the issues as to have made trial unfair.

The court then addressed the issue of damages and stated that the jury's verdict should be modified downward as follows:

• Kruzynski's $4,250,00 was reduced to $2,925,000 ($900,000 past - 11 years, $2,025,000 future - 22 years)
• Belzek's $6,125,000 was reduced to $4,410,000 ($900,000 past - 11 years, $3,510,000 future - 39 years)

Each of the plaintiffs had similar brain damage symptoms, including memory loss, headaches, fatigue, depression, loss of concentration and a decline in general intellectual function.

For two years, the plaintiffs were using acetylene torches to burn of steel beams and other metal objects covered with lead-based paint.

Suit was brought against the premises owner (the city's Metropolitan Transportation Authority) and the general contractor who were found liable for their industrial code violations as to the provision of respirators and air quality testing.

The workers' brain damage was caused by a vicious cycle: heating lead based pant with torches created fumes which were inhaled, the fumes got into the bloodstream and then absorbed into the bones, after which very slowly sometimes over years the lead moved out of the bones into the blood. The poisoned blood circulated throughout many areas of the brain causing extensive damage there. 

Inside Information:

• The defense expert, William Head, M.D., a psychiatrist and a neurologist, earns $1,500,000 testifying in court more than 25 times a year, almost always for defendants, and he has a 12 person non-medical litigation support staff.
• The plaintiffs were found to be partially at fault for their own injuries (Kruzynski 30% and Belzek 15%) because they continued to work without proper protective gear and their recoveries were reduced accordingly.

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