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

Terrorists attacked New York City's World Trade Center buildings twice - once on 2/26/93 exploding a bomb in the underground parking garage of the north tower; then on 9/11/01 flying planes into both towers.

Most people safely evacuated in 1993 (six died and hundreds were injured):

The lawsuits that followed the 1993 bombing are still ongoing and we write here about the case of Charla Mitchell who was working in the south tower that day on the 100th floor who claims the Port Authority of New York and New Jersey (the buildings' owner) was responsible for her injuries (along with the terrorists).

It took 15 years for the courts to resolve whether the Port Authority bore any responsibility for the damages resulting from the deaths and the injuries in the bombing. In Nash v. Port Authority of New York and New Jersey (2008), a Manhattan jury's verdict finding the Port Authority 68% at fault was upheld in view of its refusal to secure the towers against this type of attack when it had in its possession for years reports that placed it on notice that this very type of attack would occur.

So, Charla Mitchell's case finally came to trial in Manhattan in December 2008 and she won pain and suffering damages for her trimalleolar ankle fracture injuries in the sum of $500,000 ($20,000 past - 16 years, $480,000 future - 24 years). The trial judge, though, in Mitchell v. Port Authority of New York and New Jersey (2009) ruled on a post-trial motion that the verdict should be set aside and a new trial held. The judge found that the the jury's verdict was irreconcilably inconsistent and, in view of the sharply contested issue of proximate cause, an impermissible compromise. This week, the judge's decision was affirmed on appeal.

The big issue in this case was causation: Mitchell's ankle fracture didn't happen until 3/8/93 - 10 days after the bombing - when she was going to the mailbox outside her home.  

Mitchell said her right knee was injured and weakened in the exhausting evacuation and that 10 days later it buckled or gave out and caused her to fall upon which her ankle fractured.

The defense argued that Mitchell did not sustain any knee injury during the evacuation and that  she fell 10 days later simply because she slipped on grass. Mitchell sought no medical treatment at all during those 10 days; in fact, she performed in an opera the day after the bombing and for the five days before she fell, and on that very same day, she walked a mile each way to and from work.

Mitchell countered with (a) her own testimony that her knees hurt a great deal during those 10 days and (b) the testimony of her doctors that the evacuation resulted in knee injuries.

The jury found for Mitchell and answered "yes" to the question "Was plaintiff's descent down 100 floors of stairs on 2/26/93 a substantial factor in causing plaintiff's accident on 3/8/03?"

The jury then addressed damages and its odd inconsistency between $20,000 for 16 years of past pain and suffering and $480,000 for 24 years of future pain and suffering is what led the courts to order a new trial on all issues. They invoked the well settled principle that in a case where liability is sharply disputed, there should be a retrial on all issues if there is a strong likelihood that a jury verdict represents a compromise on damages.

The impermissible compromise principle is applied when juries have rendered inexplicably low verdict awards on damages as in Sheffield v. New York City Housing Authority (1994) (nothing for future pain and suffering and an inadequately low sum for past pain and suffering in a case where defendant stipulated to serious and permanent injuries).

In Mitchell, by contrast, the $500,000 pain and suffering damages verdict was not unreasonably low for a trimalleolar fracture case (in which the plaintiff had surgery, wore an air cast for 10 years and claimed permanent difficulties walking) and was within the range of reasonable compensation as determined by the courts (as we recently discussed, here). It was just the unusual apportionment of the $500,000 between past and future damages that led the court to conclude that the verdict was an impermissible compromise.

The court  in Mitchell should have addressed the damages issue either by (a) affirming the $500,000 award because that total was within the range of reasonableness for the injuries involved or (b) exercising its power to conditionally modify the past pain and suffering award upward and/or the future pain and suffering award downward.

Ordering a new trial results in an unwarranted waste of the litigants' time and money (as well as the courts) and appears to be a judicial compromise  - they did not agree with the liability finding made by a jury that acted deliberately so the judges point to a discrepancy within an overall reasonable damage award and claim this shows that the jury was trying to compromise. No, it's the judges who did that.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

 After evidence was presented in a trial in 2006, the judge dismissed a personal injury case brought by Delvin Sweeney. He  appealed and won a new trial set to start this week in Bronx County, New York. The case is Sweeney v. Bruckner Plaza Associates.

It all stems from an incident on December 23, 1997 when Sweeney, a quadriplegic, drove his specialized vehicle to a shopping center, parked it and found it missing on his return a half hour later. He wheeled himself a mile or so to the tow yard and claims he thereby suffered substantial injuries - pneumonia from exposure to the cold weather and hand, wrist and forearm injuries from the bumpy ride along New York City sidewalks.

Plaintiff was left without his car, with just his wheelchair like this one:

Sweeney sued the tow company (as well as the parking lot owner) claiming it had no right to tow the car and it had no signs posted showing the phone number and location of the yard and therefore the yard caused his injuries.

A sign like this one may have avoided this whole lawsuit mess:

And there was (and is) the issue of causation. Or, as we lawyers say - proximate cause. The trial judge found there was an insufficient connection between defendant's actions and plaintiff's injuries. Two of the five appeals court judges dissented and agreed with the trial judge.

Here are some more of the facts in this case that have caused such judicial turmoil:

1. plaintiff parked in a handicapped parking spot but did not have handicap plates or a government issued placard allowing him to do so
2. plaintiff saw a tow company employee who told him he could get his car back at the tow yard about two blocks away
3. plaintiff twice called the police on his cell phone from the lot and was told to stay put but instead he decided to wheel himself to the tow yard, but it turns out it was 11 blocks away down a bumpy sidewalk in the cold weather
4. plaintiff, without a coat, wheeled himself but was with his teenage brother
5. defendant should have had signs in the lot with its phone number and address - it did not
6. defendant should not have towed the car because of the absence of the signs

So how would you rule on the issue of proximate cause? Here are some clues. When there is an intervening act (between defendant's negligence and plaintiff's injury), the determination of  whether a defendant's conduct can be said to be a proximate or substantial cause of the plaintiff's injuries turns on whether the intervening act was a foreseeable consequence of the defendant's negligence. Judges will consider the following:

• were there other factors that contributed to the injury?
• was the defendant's negligence continuous up to the time of injury?
• how much time elapsed from the negligent act to the injury?

Now, you have the information needed to decide this case. It's really a policy decision and the courts are in agreement that the policy considerations underpinning the law of proximate cause serve to place manageable limits upon the liability that flows from negligent conduct. If you want to see a compendium of cases and issues dealing with personal responsibility, there's no better place to go than Overlawyered where Walter Olson chronicles it all.

So, not every act of negligence combined with an injury should result in an injured party's courtroom win. Plaintiff wins only when he can show proximate cause and if there are intervening factors - such as his own voluntary decision to wheel himself in the cold without a coat over New York City bumpy sidewalks - then it may be that despite being injured following another party's negligence there should be no recovery.

In Mr. Sweeney's case, we will find out soon enough whether he can convince a jury that his decision to wheel himself to the tow yard was an act that was foreseeable following his being left without a car and with insufficient knowledge of the tow yard's location.

The defense will try to convince the jury that Sweeney's decision was not foreseeable - especially in view of the facts that the police told him twice to stay where he was, he did not have a winter coat on and he did not use his cell phone to try another (safer) way to get home. And, too, the defense will argue that any injuries caused by defects in the city sidewalks cannot be the fault of the tow company under any circumstances.

                    Prediction: Defense verdict.

                    As always, we will continue to follow this case and report on developments.

• Email This
• Print
• Comments
• Trackbacks
• Share Link