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

After a morning of shopping on April 16, 2005, Mildred Manuel boarded a city bus to head home. At her stop, Rockaway Parkway and Schenck Street in Brooklyn, the 64 year old Ms. Manuel stepped out of the bus and fell because of a roadway hole, thereby sustaining serious knee injuries.

 A Kings County jury ruled that the bus driver had stopped in a dangerous place, in front of a rough spot in the roadway, thus rendering the city 100% liable for Ms. Manuel's injuries.

The jury then awarded plaintiff pain and suffering damages in the sum of $500,000 ($250,000 past - 4 years, $250,000 future) for the following knee injuries:

• large torn medial meniscus
• subchondral bone damage

As a result, Ms. Manuel underwent the following treatment:

• emergency room on date of accident
• physical therapy for several months
• arthroscopic surgery seven months post-accident (to repair the meniscal tear)

Ms. Manuel testified that she still has nagging pain, burning, clicking and popping in her knee and that she now no longer takes buses, has cut down on doing her laundry and cooking and has an unsteady gait.

Her doctor testified that Ms. Manuel has early arthritis from the accident, will  not likely to improve and in 5-10 years may need a total knee replacement.

Defendant appealed, arguing:

1. unsuccessfully, that the bus driver could not have been found negligent because Ms. Manuel herself couldn't even see the roadway defect (the hole) and that it was trivial as a matter of law;
2. successfully, that the damages verdict should be set aside because the trial judge should have told the jury that before it could award any pain and suffering damages it had to determine whether or not plaintiff's injuries qualified as "serious" under New York's Insurance Law Section 5102(d), one of the provisions of the so-called no fault insurance law; and,
3. alternatively, that $500,000 is excessive for pain and suffering damages under the facts in this case.

In Manuel v. New York City Transit Authority (2d Dept. 2011), the appellate court affirmed the liability verdict but the money judgment was reversed and the case sent back for a new trial on damages.

Under the law, when injuries arise out of the use or operation of a motor vehicle, a plaintiff has the burden of proving that her injuries meet at least one of the nine definitions of serious injury under Insurance Law Section 5102(d). That's a tough burden in many cases - especially those that do not involve broken bones and, as here, involve only torn ligaments.

For example, in McLoud v. Reyes (2d Dept. 2011), an appellate court dismissed the case without allowing a trial, ruling that the mere existence of a torn meniscus is not evidence of a serious injury in the absence of objective evidence of the alleged physical limitations resulting from the injury and its limitation.

Had the trial judge in Ms. Manuel's case required the jury to decide whether or not she met the threshold, they would have awarded no pain and suffering damages at all if they found that Ms. Manuel's injuries did not qualify as "serious." The new jury will now be instructed to answer the threshold question.

Since the entire damages case was sent back for a new trial, the defendant's claim that $500,000 was excessive was not ruled upon by the appellate judges.

Had the jury's damages verdict been ruled upon as to reasonableness of the amount (and if a new jury finds that the threshold has been met), it's likely that a $500,000 pain and suffering verdict would be affirmed as reasonable given the following cases involving similar knee injuries:

• DeCastro v. Andrews Plaza Housing Associates (1st Dept. 2011) [discussed at New York Injury Cases Blog, here] - $600,000 affirmed in a trip and fall case for a 45 year old woman with a chondral defect fracture and anterior cruciate ligament tear who underwent arthroscopic surgery (and may need back surgery for a herniated disc)
• Harris v. City of New York Health & Hospitals Corp. (1st Dept. 2008) - $650,000 in a trip and fall case for a 76 year old woman with torn menisci in both knees who fell and underwent arthroscopic surgery and may need a total knee replacement
• Diaz v.City of New York (1st Dept. 2011) [discussed at New York Injury Cases Blog, here] -$1,400,000 in a slip and fall case for a 40 year old man with a torn meniscus who underwent  four surgeries and needs a total knee replacement

Inside Information:

• The defense orthopedic surgeon testified that Ms.Manuel had not suffered a torn meniscus at all; rather, he opined that her MRI merely showed minor wear attributable to normal aging and degeneration (not trauma).
• Prior to the accident, Ms. Manuel had been suffering from a brain tumor that caused her to rely on her daughter to help her with activities of daily living and the defense argued that some of plaintiff's post-surgical knee symptoms were traceable to an uneven recovery from her tumor.
• Plaintiff's attorney asked the jury to award her in excess of $1,000,000 in pain and suffering damages arguing that the injury "... crippled [plaintiff] for the rest of her life."

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Angelo Diaz reported to work at 5:15 a.m. on July 15, 2002 at the New York City Department of Sanitation's maintenance garage in Manhattan. The then 40 year old Diaz was going about his work for an hour or so moving trucks from the garage (like the one seen below) to the street outside when he stepped out of one of the trucks and slipped on oil or grease on the truck's interior step.

Mr. Diaz twisted and banged his left ankle and knee, resulting in severe pain. He was taken to the local hospital where he was treated, diagnosed with an ankle sprain and released with a cane. His ankle got better and he returned to work within three weeks but then his knee was more painful and unstable.

Shortly thereafter, an MRI revealed a torn meniscus in his knee.

Diaz never returned to work and in early 2003 started a lawsuit (Diaz v. City of New York -Supreme Court, New York County, Index #116703/03) to recover money damages for his pain and suffering, medical expenses and lost earnings.

Trial was held over 10 days in September 2008 and the jury returned a verdict 100% in plaintiff's favor. The defendant was found negligent in that the worksite was in an unsafe condition; in particular, grease was left  inside of the truck.

The jury then determined that plaintiff was entitled to pain and suffering damages in the sum of $950,000 ($800,000 past - 6 years, $150,000 future - 31 years). Plaintiff was also awarded significant sums for his future loss of earnings and medical expenses.

The city appealed the verdict claiming there was no basis for finding negligence. And plaintiff cross-appealed claiming that the future damages award ($150,000 for 31 years) was too low.

Now, in Diaz v. City of New York (1st Dept. 2011), the plaintiff's position has been vindicated on both accounts. The appellate judges affirmed the liability finding and increased the future damages award to $600,000.

The total pain and suffering award is now $1,400,000 (with the total verdict for all damage items adjusted to $2,672,433 considering the appellate court's modifications to the earnings and medical expenses awarded by the jury).

The appellate court was clearly impressed by medical testimony establishing that Diaz's knee injuries are permanent, necessitated four arthroscopic partial menisectomies - surgical procedures to remove part of the torn meniscus from the knee joint - and that he will require knee replacement surgeries in the future.

The fourth arthroscopic surgery involved an osteochondral transplant to the medial femoral condyle using a bone plug.

Within two years of the accident, Diaz was declared disabled from his job by his employer. And, by the date of trial, he could still not work in a similar capacity (as a sanitation or construction worker), or do any work that required lifting, bending or squatting. His pain and knee stability were better but he still had pain every day under his patella (the kneecap) and could not play or coach baseball, ride a bicycle, or dance, all of which had previously played a big part in his life.

Plaintiff's treating orthopedic surgeon explained to the jury how the meniscus is the shock absorber of the knee and that its removal increases the risk of further injury to the knee. He said that Diaz was already already suffering from quadriceps atrophy, patellofemoral syndrome (grinding of the kneecap against the femur) and post-traumatic arthritis and it was "highly likely" that he will require at least one partial knee replacement and two total knee replacements during his lifetime.

Inside Information:

• Plaintiff's trial attorney, Jonathan Michaels of Pena & Kahn, succeeded in winning just about every courtroom battle in this hotly contested case. He obtained missing witness charges, preclusion of evidence of plaintiff's prior ankle injury and permission to claim damages for clinical depression without the testimony of a mental health expert.
• Plaintiff's third surgery, in 2007, was brought about by a new accident - his knee buckled as he stepped off a curb.
• The defense did not present any medical witnesses (relying instead merely on cross-examination of plaintiff's doctor).
• The $700,000 reduction in the future loss of earnings claim resulted from a mathematical error by the jury.
• The appellate judges cited two cases to support their ruling that $150,000 was inadequate for future pain and suffering damages - Kelly v. City (1st Dept. 2004) and Calzado v. New York City Tr. Auth. (1st Dept. 2003). In Calzado, $700,000 was affirmed for future pain and suffering over 32 years for a woman with knee ligament and meniscal tears requiring future knee replacement surgery. That case is quite relevant. In Kelly $657,000 was affirmed for past and future pain and suffering damages for a 37 year old man with similar injuries.  More relevant would have been a reliance upon Smith v. Manhattan and Bronx Surface Transit Op. Auth. (1st Dept. 2009) in which $800,000 was affirmed for future pain and suffering over 40 years in a similar torn meniscus case (i.e., two surgeries to date and knee replacement needed in the future).

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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.

UPDATE: On March 22, 2011 the appellate court reversed the judgment in this case and dismissed the complaint because there was no evidence showing that, prior to the occurrence, the defendant had knowledge of any defects in the chair.

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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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