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

On June 14, 2006, at about 3:30 p.m., then 72 year old Irene McDonald attempted to board a train at the New Hyde Park Long Island Rail Road (the LIRR) station when she fell through a 12 inch gap between the train station platform and the train door.

Here is the LIRR train station where Ms. McDonald fell:

Ms. McDonald fell in up to her chest with her feet on the ground, facing the train, and with her back against the platform. She was lifted out by fellow passengers but her legs were injured and she later sued the LIRR claiming that the gap constituted a dangerous and unsafe condition.

Trial in the case, McDonald v. Long Island Rail Road (Supreme Court, Queens County; Index # 2772/06), began on January 16, 2009. Plaintiff argued that the LIRR was negligent and fully liable for Ms. McDonald's injuries because the 12 inch gap exceeded the defendant's own standard of seven to eight inches and the LIRR was aware of the problem and failed to correct it. The jury agreed, finding the defendant 100% at fault and awarding Ms. McDonald $175,000 for her injuries ($110,000 past - 2 1/2 years, $65,000 future - 12 years).

There was evidence at the trial that the plaintiff already knew about the gap, in that she was a regular traveler at, and quite familiar with, the New Hyde Park train station but that, nevertheless, she looked straight ahead (and not down) as she was trying to board the train. These facts, the LIRR argued on appeal, required some finding of comparative negligence on plaintiff's part.

On appeal, the defendant's position as to comparative negligence has now been upheld. In McDonald v. Long Island Rail Road (2nd Dept. 2010) - the liability verdict has been reversed and a new trial ordered on the issue of liability.

Also, the appellate judges ruled that $110,000 for Ms. McDonald's past pain and suffering is excessive and that award should be reduced to $75,000. They affirmed the jury's $65,000 award for future pain and suffering. As a result, if this case is tried again $140,000 will be the total pain and suffering damages award which will be reduced by the percentage of plaintiff's comparative negligence assessed by the new jury.

Ms. McDonald's injuries were not specified by the appellate court. They included:

• extreme fright at the scene of the accident
• bruises to both shins with an eschar (area of dead skin) on one leg requiring daily nursing care
• skin loss with a graphic cavity on one leg requiring a split thickness skin graft under IV sedation
• follow-up treatment using silver nitrate to burn down the area of healing that had become hypertrophic or raised
• permanent depression, numbness and pain at the wound site inhibiting activities of daily living and precluding swimming

Skin graft:

The appellate court cited only one case to justify its holding that Ms. McDonald's past damages award should be reduced from $110,000 to $75,000 - Goady v. Utopia Home Care Agency (2nd Dept. 2003). In that case, the court reduced to $150,000 ($125,000 past, $25,000 future) a $300,000 pain and suffering award for an infant ($200,000 past, $100,000 future) who sustained a small 2nd degree hot iron burn that resulted in a keloid scar removed during a surgical procedure primarily undertaken to address complications from unrelated cerebral palsy. The boy had intense pain at the moment of the burn and some pain for months thereafter but did not require hospitalization or a skin graft.

Inside Information:

• A hotly contested issue at the trial of McDonald v. Long Island Rail Road involved the admission of evidence of other gap-related accidents over many years at LIRR stations. The parties disagreed over whether the other accidents occurred under substantially the same conditions as Ms. McDonald's accident and the judges cautioned that in the new trial any evidence of prior accidents must meet the substantial similarity standard.

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On August 15, 2004, then 20 year old Ervin Jordan was on his bicycle in Wyandanch, New York (Suffolk County) attempting to cross a road known as Straight Path at its intersection with State Avenue.

Jordan was peddling along, just like this fellow:

At the same time, and on State Avenue only a block away from Jordan, a county police officer received a dispatch advising of a robbery in progress. The police officer made a quick U-turn and headed to the crime scene. He didn’t get very far. Though he saw Jordan on his bicycle, the police officer slammed right into him.

It wasn't this one but here's a classic Suffolk County police car:

In the ensuing personal injury lawsuit, the county claimed that Jordan could not prove that the officer drove with reckless disregard for the safety of others. That standard is higher and much more difficult to prove than ordinary negligence. Under New York’s Vehicle and Traffic Law Section 1104, that standard is applied in favor of police officers in car accidents while responding to a police call.

The Suffolk County jury that heard this case ruled that the officer had indeed been reckless.

In the trial on damages that followed, the jury was apprised of plaintiff’s injuries:

• fractured tibia and fibula in both legs with bone chips and butterfly fragments in each
• open reduction internal fixation in both legs with rods and screws
• compartment syndrome (the compression of nerves and blood vessels within an enclosed space) requiring two additional surgeries know as fasciotomies (surgical incisions to relieve neurovascular pressure in a muscle compartment)
  
• skin graft procedures on both legs each leaving 28 cm scars
• continuing pain, limited range of motion and inability to pursue athletics or activities with his two young children

Here is what compartment syndrome looks like in the lower leg area:

After evaluating all of those injuries (which required a three week hospitalization followed by six weeks in a rehabilitation facility), the jury awarded plaintiff $100,000 for his pain and suffering ($50,000 past – 3 ½ years, $50,000 future – 51 years).

The trial judge, though, found that sum inadequate and ordered an increase to $750,000 ($250,000 past, $500,000 future). The defendant appealed and last week in Jordan v. County of Suffolk (2nd Dept. 2010), the appellate judges agreed with the lower court judge and upheld the increase to $750,000.

The appellate court decision disclosed nothing at all about the nature of the injuries and it also failed to set forth the reasons for upholding the trial judge’s increase. The trial judge’s decision in Jordan v. County of Suffolk did discuss the injury details but the judge’s references to allegedly relevant prior cases supporting his decision are not very helpful. The judge cited these four cases:

1. Brandwein v. New York City Transit Authority (1st Dept. 2005) – dealing with an ankle fracture sustained by a 26 year old woman who thereafter underwent three surgeries and at trial was awarded $30,000 by the jury for her past pain and suffering and nothing for the future. The appellate court increased the past pain and suffering sum to $60,000 but affirmed the denial of any future award because the plaintiff’s subsequent injuries were fund to have been due to a pre-existing degenerative disease known as Charcot-Marie-Tooth Syndrome.
2. Kane v. Coundorous (1st Dept. 2004) – the appellate court sustained $250,000 for future pain and suffering for a man who suffered a herniated disc in his back and underwent a failed laminectomy and subsequent spinal fusion
3. Fischl v. Carbone (2nd Dept. 1993) – the appellate court sustained a pain and suffering award of $515,000 ($300,000 past – 7 years, $215,000 future) for injuries to a 29 year old athletic veterinarian including spiral fractures of her tibia and fibula, leaving her with a disfigured leg and unable to resume sports or her prior profession
4. Shurgan v. Tedesco (2nd Dept. 1992) – the appellate court sustained the trial judge’s increase of the jury’s pain and suffering award to $150,000 in a facial scarring case

While the judges in Jordan v. County of Suffolk  properly increased the award (and they could have evaluated the pain and suffering of Mr. Jordan at much more than $750,000 without being unreasonably generous), they nonetheless either did not explain their reasons for the higher awards or (as to the trial judge) purported to so so by citing prior cases that have little relevance.

Here are two cases (just from the Appellate Division's 2nd Dept.) that the judges could and should have cited and discussed:

• Brown v. Elliston (2nd Dept. 2008) - $700,000 ($300,000 past, $400,000 future) for a 53 year old man with comminuted fractures to the shaft of his tibia and fibula requiring open reduction and internal fixation of a rod down the length of his shin
• Bajwa v. Saida, Inc. (2nd Dept. 2004) - $700,000 for a 61 year old construction worker with  spiral fractures of his tibia and fibula requiring open reduction and internal fixation with an intermedullary rod

Perhaps the judges would have found useful our review of tibia and fibula fracture lawsuits and appellate decisions, here.

  Inside Information:

• The jury determined that both parties were negligent and they assigned 25% of the fault to Jordan. Therefore, his gross recovery was reduced from $750,000 to $562,500
• In his closing, plaintiff's attorney, Oscar Michelen had asked the jury for a pain and suffering verdict of $1,000,000. I hear that when the county attorney told the appellate judges in oral argument  that $100,000 was a reasonable sum for Mr. Jordan's injuries one of the judges was so surprised that he blurted out, "Maybe in 1920." Clearly, he and his colleagues on the bench had a much higher figure in mind. And clearly, too, Mr. Michelen's request for $1,000,000 for his client was reasonable and his advocacy was superlative.

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