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

On March 2, 2002 at about 5:30 p.m., Miguel Beato returned home from work as a porter. As he walked through the courtyard of his apartment complex at 35-46 65^th Street in the Woodside section of Queens, New York, he was confronted by an unknown gang of men. He asked them to move out of his way and they responded by with a 15 minute attack in which Miguel was beaten continuously and severely.

Beato faced a gang of hoods like this:

Beato sustained injuries all over his face, including:

• an orbital (eye socket) fracture
• a mid-face (depressing and caving in the area from the eye to the teeth) fracture
• a displaced eye
• a markedly displaced fractured nose that obliterated his sinus

The attackers fled but were caught, convicted and jailed. Beato, then 39 years old, sued the building owner claiming that the owner negligently failed to provide adequate security. A Queens County jury agreed and apportioned liability 75% to the owner and 25% to the attackers. Pain and suffering damages were then assessed at $5,000,000 ($1,500,000 past – 6 years, $3,500,000 future – 15 years). The trial judge then ruled that the award was excessive and should be reduced to $3,500,000 ($1,500,000 past, $2,000,000 future).

The building owner appealed arguing that there was no basis for any liability against it because the attack was neither foreseeable nor the result of any negligence on its part. Also, the defendant urged that the future pain and suffering award of $2,000,000 was still excessive (no challenge was made to the reasonableness of the $1,500,000 for past pain and suffering).

Last week, in Beato v. Cosmopolitan Associates, LLC, the appellate judges agreed with the defense and dismissed the entire case. Plaintiff’s testimony that he previously complained of loitering and suspected drug sales in the building lobby was ruled insufficient to establish the requirement that the assault was foreseeable.

The appellate judges in Beato did not address the arguments as to the reasonableness of the damage awards stating that in view of the dismissal on the merits those issues were academic. Here, though, we can and will address those issues and we do so with the benefit of the parties’ submissions to the court, including their briefs on appeal.

First, let’s take a look at some details as to the injuries in this case. The injuries are generically described above but here are their technical terms:

• comminuted fractures of both sides of his nasal bones
• comminuted fractures of his left orbital floor and nasal septum
• fractures of the left lamina papyracea and lateral superior wall extending to the frontal maxillary sinus and significant nasal lacerations

Blowout fractures are casued by direct trauma to the globe, like this:

If ever the term “getting his face punched in” applied, this is the case. Photographs of the plaintiff as he appeared shortly after the attack were shown to the jury (over defense objections) and no doubt they were stunned and sympathetic.

Now, let’s see what happened to Mr. Beato after the attack. He was immediately taken by ambulance to the hospital and admitted. He underwent two complex surgeries – one addressed the repair of his sinus and septum and the other consisted of open reduction and internal fixation of the orbital floor fracture.

At trial, six years after the incident, Beato had difficulty breathing due to his sinus injury, scars on his face and his surgeon stated he’d need additional surgeries to redo his nose, take out the plate and open his sinus and would have lifelong pain, difficulty breathing, physical and visible deformities and the need for narcotic pain medication.

It’s usual in injury cases that the defense will avail itself of its right to have the plaintiff examined by one or more doctors of its choosing to verify or dispute the severity (and causation) of a plaintiff’s injuries. The defense doctors are then usually called to testify at trial as to their findings. In this case, though, the defense chose to keep its doctors out of court and the plaintiff therefore sought and obtained a missing witness charge. That’s where the judge tells the jury that it may draw negative inferences from the defendant’s failure to call its own physicians. Clearly, that hurt the defense in this case and the jury accepted as true all of the dire future consequences testified to by plaintiff’s own doctors.

The defense gambled in this case in failing to call its doctors to testify and then after the verdict in declining to challenge the $1,500,000 past pain and suffering. In the end, the gamble paid off.

Before it did, though, there was substantial argument and disagreement over the propriety of the award for future pain and suffering. Would $2,000,000 have been sustained had liability not been overturned? I think not. There is a dearth of precedent as to sustained multi-million dollar verdicts for facial injury pain and suffering. Also, defense counsel claimed plaintiff made a good recovery and that plaintiff’s doctor’s claim that plaintiff would need lifelong pain medication was belied by the fact that at trial he took nothing more than over the counter antihistamine.

We’ve reviewed facial injury cases, here, especially several in the $200,000 to $500,000 range.

There are very few cases awarding $1,000,000 or more for facial injury pain and suffering. Here are some:

• Simon v. Sears Roebuck & Co., Inc. (2^nd Dept. 1986) - $1,000,000 for loss of eye following car accident
• Stiuso v. City of New York (2^nd Dept. 1996) - $1,750,000 ($1,000,000 past – 4 years, $750,000 future – 15 years) for loss of an eye and fractured jaw
• Storms v. Vargas (2^nd Dept. 1998) - $4,000,000 ($3,000,000 past – 10 years, $1,000,000 future – 32 years) for 31 year old police officer in car accident who sustained crush fractures all over his face requiring 26 separate surgical procedures and 16 one week or more hospitalizations prior to trial and was left with an artificial eye, limited vision and the need for additional surgeries once every two years for life

Without minimizing what Mr. Beato went through and will be left with for his life, it appears that had Beato's $2,000,000 future pain and suffering verdict been reviewed by the appellate court it would have been reduced substantially given the case law discussed above and especially in view of Storms v. Vargas where the injuries appear to be much more severe.

Inside Information:

• the jurors appear to have been confused in that plaintiff offered proof of $52,000 in medical expenses incurred to the date of trial but the jury awarded $250,000 for that element of damages
• further evidence of juror confusion: they awarded $1,500,000 for future medical expenses but the trial judge reduced that sum to $200,000 as the doctors’ testimony as to the costs future treatment justified no more than that
• had liability been upheld, the defendant would have had to pay the entire damages award even though the jury found others (the criminals) were 25% at fault and that’s because under New York’s CPLR Article 16 a defendant in this type of case will be liable for the full damage award when found to be 50% or more at fault

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Bars and restaurants are frequently sued for injuries to patrons that result from fights. Usually, the fights, or attacks, are between patrons. Sometimes, it’s a bouncer or security person who causes the injuries. In all cases, though, liability upon the bar or restaurant will depend on whether there was an opportunity to control (i.e., prevent) the incident and whether the premises owner was reasonably aware of the need for such control. There is simply no duty to protect patrons against unforeseeable and unexpected assaults. The courts have addressed these concepts in three recent cases in which patrons were beat up in bars and restaurants.

Crazy Donkey Bar & Grill – that’s really the name of a bar in Suffolk County, New York – won one of its appeals of an injury verdict against it arising out of an assault on the dance floor but lost two others.

The facts sound like the beginning of a joke – guy arrives at a bar with his girlfriend, buys a drink and walks across the dance floor to give it to her when another guy comes up behind him, grabs his shoulder and …. Well that’s pretty much it. No punch line except that the boyfriend was, literally, punched (in the face) and suffered a broken nose. The perp (as prosecutors would call him) was never found but the boyfriend sued the bar.  And won a verdict of $115,000 (fractures of both nasal bones, deviated septum, concha bullosa  and lacerations).

On appeal, though, the verdict was reversed and the boyfriend's complaint dismissed in Giambruno v. Crazy Donkey Bar & Grill because of the spontaneous nature of the incident and the finding that the attack could not have been prevented even with a greater presence of security personnel.

Giambruno’s girlfriend, Bobee Delgado and his uncle William Hacker also sued the bar. When Delgado tried to come to Giambruno’s aid, the bar’s bouncers grabbed her and Hacker and hauled them outside where they threw Delgado over a wall and kicked and punched Hacker.

Delgado sustained contusions of her left thumb and right hand as well as bruising under her arms for which the jury awarded her $74,000 in pain and suffering damages. The trial judge reduced her award to $1,000 and the appeals court finally increased it to $15,000.

Hacker sustained contusions to his head and right hand as well as severe bruising on his back, chest, neck and arms. His $88,000 verdict was likewise reduced to $1,000 by the trial judge and increased to $15,000 by the appeals court.

In another recent case, a young man was attacked just outside a well known New York City nightclub, inside a roped off smoking area. Standing near the door (and a doorman and security person), Jack Haber was confronted by two other patrons who had exited the club. They argued for about 60 seconds when Jack was pummeled in the face first by one and then by another attacker. Hacker did not fight back and the nearby security guard did not intervene.

Jack sued the club – the notorious Stereo – and in Haber v. Precision Security Agency, the defendants argued on a motion to dismiss that they had no duty to protect plaintiff under these circumstances. The trial judge denied the motion finding that a jury may fairly determine that the 30-40 second fight was long enough for the staff to intervene, given their proximity to the assault and the fact that they were present for another minute or so during the verbal altercation preceding the attack. So, this case was allowed to proceed to trial and we will follow it for future developments such as an appeal, trial or settlement.

In the third recent case, Boyea v. Aubin, an appeals court affirmed the denial of a restaurant’s pre-trial motion seeking dismissal of its patron’s lawsuit for injuries arising out of a fight at the premises. Jack Boyea was struck in the back of the head during a melee that erupted between the restaurant’s general manager and a disgruntled customer. There had first been a 15 minute dispute between Boyea’s girlfriend and a waiter when the manager intervened and the fight broke out. The issue a jury will determine is whether the defendants could have anticipated or prevented the incident and whether the manager’s conduct was reasonable.

Not surprisingly, bars and restaurants are places where, often under the influence of alcohol, fights erupt and people are injured. Then, the instigator is either missing (unidentified because he fled) or judgment proof (an uninsured, financially strapped person). So, the premises owners (usually insured or otherwise financially viable) are named as defendants with allegations that they failed in their obligations to protect their patrons from injurious acts of third persons. These claims can succeed but are quite dependent on the unique facts of each case. In many cases, there is no set of facts that will allow the case to proceed to trial and they are dismissed as a matter of law. The recent cases indicate a trend to more exposure on the part of premises owners.

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