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

We wrote about Detective Anderson Alexander back in December, here. He's the former former New York City policeman who accidentally shot himself in the knee when a defective chair broke at his precinct house.

Don't sit in a chair like this:

And definitely don't sit in that chair with a gun like this in your belt:

Detective Alexander sued the city claiming that it was responsible for the broken chair (and that he was not responsible for the gun's discharge). Alexander won and the jury awarded him $4,500,000.

We predicted that the city would appeal and that's in the works now. The trial judge issued a short decision a few months after the verdict in which he stated that the damages award was reasonable. Just this week, the appellate court issued a brief order extending the city's time to file its appellate briefs until November 13, 2009.

In the meantime, here is how the $4,500,000 damages verdict broke down:

• $1,500,000 for pain and suffering ($500,000 past - 7 years, $1,000,000 future - 30 years)
• $1,700,000 for future loss of earnings
• $1,060,000 for future loss of pension
• $250,000 for future medical expenses
• $38,00 for loss of annuity

Mr. Alexander took his verdict, was given a line of duty retirement by the police department and then he got out of town. He moved to South Carolina to work as a deputy sheriff supervising a courthouse metal detector. While we focus on these pages on pain and suffering damages analysis, one wonders whether it's appropriate under the facts of this case for Alexander to recover $1,700,000 for future lost earnings (plus more than $1,000,000 for lost pension and annuity) in view of his claim that he was in constant pain and so disabled he could not resume work.

As to pain and suffering, if the liability verdict is upheld on appeal, the judges will address the reasonableness of the damages verdict for Alexander's knee injury. Here are the cases that the court will likely look to for guidance in determining if $1,500,000 was a reasonable sum for Alexander's pain and suffering:

• Urbina v. 26 Court Street Associates LLC : $2,200,000 ($700,000 past - 7 years, $1,500,000 future - 41 years) for a 31 year old man who fell and sustained an intra-articular patella fracture and a torn meniscus requiring three surgeries leaving him with a permanent limp [Urbina case discussed here]
• Smith v. Manhattan & Bronx Surface Transit Operating Authority : $900,000 ($100,000 past - 6 years, $800,000 future) for a 43 year old woman who was injured boarding a bus and sustained torn menisci, a torn ligament and cartilage and a permanent osteochondral defect, requiring arthroscopic surgery with another to follow and a knee replacement possible [Smith case discussed here]
• Nassour v. City of New York : $1,500,000 ($500,000 past - 8 years, $1,000,000 future - 27 years) for a 42 year old man who fell and sustained torn meniscal cartilage, underwent arthroscopic surgery and a high tibial osteotomy and was left with permanent reflex sympathetic dystrophy (RSD)
  

We will report when the Alexander case is resolved and, if the liability verdict is upheld, we will see how the appellate court assesses pain and suffering damages and whether and to what extent the judges consider the cases discussed here.

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New York courts have long held that people taking part in a sport or recreational activity are deemed to consent to those commonly appreciated risks or injuries that are inherent in and arise out of the nature of the sport generally. In other words, most sports injury cases will be dismissed because of the doctrine known as assumption of risk.

Previously, here, we discussed the difficulty of winning sports injury lawsuits in New York brought by schoolboys in a wrestling match and a floor hockey game as well as a spectator at a soccer game. Now, we look at lawsuits by players and fans injured during baseball games and practices. These plaintiffs fare just as poorly as those in other sports.

The most recent decision in a baseball case dealt with the claim by a spectator at a professional game at Keyspan Park, the minor league field of the New York Mets. On July 22, 2005, Gerard Elie, a season ticket holder with seats 15 feet off the third base line, was watching the visiting New Jersey Cardinals warm up - they were swinging bats and hitting baseballs to other players. Somehow, one of the players' bats flew into the seats and struck Elie in the nose. He sued. He lost. In Elie v. City of New York, the judge granted the summary judgment motion by the defendants (the city as owner of the park, both ball clubs and the player himself). He stated that Mr. Elie was a seasoned spectator of baseball and that he assumed the risk of many dangers, including the danger of being struck by a loose bat. Case dismissed.

By the way, if you wonder why at major league ballparks the coaches and ball boys often hand a used played ball to fans clamoring for them instead of tossing the ball, it's because of people like Giacinto Pira, a 35 year old fan in the third row at a New York Mets game back in 1999. He wasn't paying attention when a Mets pitcher tossed a ball to some fans, one of whom tipped the ball causing it to hit Pira in the nose. The ballplayer apologized and gave Pira an autographed ball. Pira then sued the Mets! And after having his case dismissed by the trial judge on assumption of risk grounds, Pira took it a step further and appealed. He lost again, in Pira v. Sterling Equities, Inc., d/b/a The New York Metropolitans, and now you know why at most stadiums the fans have balls handed to them - so the teams don't have lawsuits thrown at them.

This lucky fan got a souvenir, wasn't hurt and didn't sue anyone:

In another recent case, a New York appeals court upheld the trial judge's dismissal of a case brought by a 15 year old boy for injuries he sustained during a Little League practice. Thomas Goodwin placed himself between two ongoing games of catch when he was struck on the forehead by a ball thrown by one of his teammates. In Godwin v. Russi, the court noted that Thomas, an experienced baseball player, a member of his high school team, arrived late to practice and walked, without putting his glove on, into the area other players were already warming up and tossing the ball around.

In a case that aroused a great deal of interest this summer, a Staten Island boy's mother sued on his behalf for knee injuries the boy sustained sliding into second base during a Little League game. The case, Gonzalez v. New Springsville Little League (Supreme Court, Richmond County; Index # 101879/07), was settled for $125,000 and has generated a great deal of notoriety for example from Rick Reilly of ESPN The Magazine, Walter Olson at Overlawyered and Justin Rebello at Lawyers USA. It appears that then 12 year old Martin Gonzalez's suit was based on negligent coaching (i.e., allegations that Martin hadn't been taught the proper sliding mechanics) and improper equipment (i.e., allegations that the base itself was stationery and not detachable or moveable).

The injuries in the Gonzalez case - torn ligament and meniscus requiring two surgeries - are serious enough to warrant a settlement or verdict in the low to mid six figure range; however, it's the liability concept that has aroused so many and angered some. Only Eric Turkewitz at New York Personal Injury Law Blog appears sympathetic, suggesting that there may have been a valid failure to use break-away bases claim that led the league to settle.

We will continue to follow assumption of risk cases in general and sports injury cases in particular. Some of the types of cases that are being or will be litigated include those brought by professional athletes for dangerous playing field conditions, amateur baseball players claiming metal bats are inherently dangerous and kids injured at public batting cages. And, no doubt, we will revisit the Little League case settlement and the issues underlying it.

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Judicial decisions in several recent cases demonstrate the wide range of possible outcomes for pain and suffering awards in knee injury cases.

We last visited this topic when discussing the New York City police officer who shot himself in the knee and convinced a jury not only that the city was at fault but also that he should recover  $4,500,000. That case will not be over until an appeals court rules. We expect a significant reduction in the pain and suffering award, if not an outright dismissal on liability grounds. We are following.

A very significant knee injury award for pain and suffering was largely upheld on appeal early last year in Urbina v. 26 Court Street Associates LLC . There, a 31 year old laborer fell off a scaffold and suffered both an intra-articular patella fracture and a torn meniscus. After three surgeries, he still needed at least two total knee replacements. Mr. Urbina was left with permanent pain, a limp and severe disabilities. The jury's $3,500,000 pain and suffering verdict ($1,000,000 past, $2,500,000 future) was reduced on appeal to $2,200,000 ($700,000 past, $1,500,000 future).

In the meantime, a Nassau County judge in a trip and fall case has issued a post-trial decision in Linzer v. Town of Oyster Bay reducing a $950,000 pain and suffering verdict ($450,00 past, $500,000 future) to $375,000 ($150,000 past, $225,000 future). In that case, a 45 year old doctor sustained a comminuted intra-articular fracture of her right leg's patella (the kneecap) requiring surgery to insert two metal screws to hold two large bony fragments together and sewing a third piece, all so that the patella would be held together.

Here's what that knee looked like after surgery:

After trial, the defense made a motion to set aside the $950,000 verdict as against the weight of the evidence. Justice F. Dana Winslow issued a decision on the post-trial motion that addressed all of the injuries and discussed the case precedent cited by each side.

In reducing the jury verdict, the judge was influenced by the facts that Dr. Linzer:

• did not suffer from any post surgery complications
• was on pain medication for only one month
• had no limp
• returned to work three months after the surgery

In a recent appellate court decision, the court in Smith v. Manhattan & Bronx Surface Transit Operating Authority upheld a Bronx county jury's $900,000 verdict for pain and suffering in favor of a 43 year old woman who injured her knee when boarding a bus whose driver closed the door on her causing her knee to twist, and then he drove away and dragged her about eight feet.

Ms. Smith sustained these injuries:

1. tears of her medial and lateral menisci          
2. torn cruciate ligament
3. torn cartilage
4. permanent osteochondral defect

She underwent arthroscopic surgery but by the time of trial six years later, plaintiff had developed significant scar tissue, had substantial range of motion deficits and suffered from continuing pain, buckling and weakness all of which her doctor said were permanent injuries that would require more surgery including a knee replacement.

Lastly, we mention Gaston v. City of New York, in which a Bronx county jury awarded the grand total of $5,000 for past pain and suffering and nothing at all for future pain and suffering for a woman who suffered a torn meniscus that necessitated surgical repair. The appeals court found those awards to be unreasonable and ordered an increase to $250,000 ($200,000 past, $50,000 future).

The cases discussed here make plain that the range of damage verdicts in knee injury cases is quite wide - not only for the juries ($5,000 in the Gaston case to $3,500,000 in the Urbina case) but also for the appeals courts ($250,000 in Gaston to $2,200,000 in Urbina).  As we see in Gaston, when the jury awards a figure the appeals court finds is too low, then there will be an increase but not to the highest figure the court would have sustained. Instead, as in Gaston,  the courts will increase an unreasonably low award to the lowest amount that would have been upheld as not unreasonably low. And when an award is found to be unreasonably high, the appeals court will simply order a reduction to a figure that is the highest it would have sustained.

If the jury comes in too high or too low well then watch out because the appellate court will not make it all just perfect. The appellate courts will merely order an increase or a decrease into a range they deem reasonable. And in knee injury cases, the range of sustainable pain and suffering awards is quite wide.

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