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

On August 30, 2001 Kenzie Godfrey was an honors physics student about to begin her senior year at Hunter College in Manhattan. She was headed towards a NASA research position and then a PhD upon graduation. Her dreams turned into nightmares that day when the 21 year old was a rear seat passenger in a taxicab that was involved in an accident with another vehicle at 22nd Street and Third Avenue.

Kenzie was thrown forward and her head hit the plexiglass partition behind the cab driver. In pain with a lump on the side of her head and a swollen eye, she was taken by ambulance to the local hospital where she was treated and released. Within the ensuing week, though, Kenzie was disoriented and dizzy and her head pain was debilitating.

On September 6th, Kenzie sought treatment at the emergency room at which time a CAT scan was performed showing a temporal lobe contusion and a subdural hematoma.

Kenzie's injuries were thought to be minimal. Due to the hematoma, though, she was admitted for observation for two days and then discharged.

Unfortunately, Kenzie got worse. Much worse. Her symptoms cascaded with headaches, fatigue, problems concentrating, depression and anxiety. She finished one more semester of college but dropped out because she was unable to read anymore. She often remains inside her apartment, in the dark, due to extreme light sensitivity. Despite trying, she's been unable to work. She's taking extensive medication and participates in a traumatic brain injury (TBI) program that provides her with home care assistance. Her doctors testified she will get worse and worse and requires full time home health aid.

In her ensuing lawsuit against the drivers and owners of the cars involved in the crash, Kenzei's TBI was so bad that the jurors awarded nearly $11,000,00 in damages, as follows:

1. pain and suffering - $3,592,000 ($260,000 past - 7 years, $3,332,000 future - 48 years)
2. past and future lost earnings and benefits - about $1,200,000
3. future medical expenses - about $6,000,000

In Godfrey v. G.E. Capital Auto Lease, Inc. (1st Dept. 2011), the appellate court has addressed several liability and damages issues raised by the parties and ruled as follows:

• future pain and suffering damages should be reduced by $832,000 (from $3,332,000 to $2,500,000)
• there was sufficient evidence to sustain the jury's awards for medical expenses and loss of earnings and benefits
• the plaintiff's failure to use a seatbelt must be addressed in a new trial to determine the amount by which her damages should be reduced (the defense argued that her head injuries would not have been so severe had she been wearing a seatbelt)

The appellate court ordered a substantial reduction ($832,000) of the pain and suffering damages after setting out several details of plaintiff's brain injuries; however, there was no discussion at all as to the court's analysis of prior cases that were briefed by the parties. Here, then, are some of the cases:

• Paek v. City of New York (1st Dept. 2006) - $4,300,000 ($1,300,000 past, $3,000,000 future) for a 35 year old highly skilled pattern maker  who sustained a skull fracture and epidural hematoma resulting in severe cognitive dysfunction, depression and disabling headaches.
• Garrison v. Lapine (3d Dept. 2010) - $2,500,000 ($500,000 past - 6 years, $2,000,000 future - 31 years) [discussed previously, here] for a 44 year old housewife with post-concussive syndrome and axonal injuries manifesting in severely erratic behavior and disabilities.
• Popolizio v. County of Schenectady (3d Dept. 2009) - $2,100,000 ($350,000 past - 5 1/2 years, $1,750,000 future - 23 years) [discussed previously, here] for a 56 year old man who sustained TBI manifesting in cognitive function bordering on mental retardation and depression.

Inside Information:

• Perhaps the biggest issue in the case was buried in the middle of the court's opinion - ownership of the jeep. Under New York's Vehicle and Traffic Law Section 388, the owner of a vehicle is vicariously liable for the damages caused by the negligence of the vehicle driver. In 1995, Larissa Sgarlato leased the jeep from G.E. Capital Auto Lease, Inc. (GE)  and at the end of the four year term she wanted to buy the car. A bill of sale was signed as was a retail installment agreement setting forth the terms of the purchase agreement and in 1999 GE delivered to Ms. Sgarlato an executed certificate of title; however, GE was still listed as the owner on the date of the accident. Both the jury and the appellate court found, though, that the parties intended to transfer ownership from GE to Sgarlato and that when the accident occurred GE was no longer an owner.
• The ownership issue was so big because, as I hear it, there was only $100,000 of liability insurance covering the jeep. Without GE's "deep pockets," the practical limit of any recovery is the amount of insurance coverage.
• The defense did not call any physicians to testify as to plaintiff's TBI.

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On September 27, 2003, Claude Williams, a 66 year old retiree, stepped off the curb on Madison Avenue near its intersection with 125th Street in Manhattan and was struck by a New York City Transit Authority (NYCTA) bus. His injuries, described below, were severe.

In the lawsuit that followed, Williams v. Hooper (Supreme Court, New York County, Index # 117924/04), the parties presented drastically different versions of the facts:

• Plaintiff claimed that the bus driver caused the accident by running a red light and going too fast at a distance of less than three feet from the curb.
• The driver argued that Williams himself caused the accident by stepping off the street smack into the side of the passing bus.

Here is a NYCTA bus pulling over to a curb:

Williams sustained significant blunt head trauma from the accident and was rushed by ambulance to  Harlem Hospital where he was diagnosed with:

• bilateral subdural hematomas later requiring surgery to burr four holes through his skull to relieve the pressure and drain blood from his head
• subarachnoid hemorrhage
• intracerebral hemorrhage
• facial fractures (sinus, left olecranon and left orbit)

Here is a look at the craniotomy in which burr holes remove blood clots from around the surface of the brain:

Ultimately, Williams was left with severe traumatic brain injuries (TBI) including:

• memory loss with both anterograde and retrograde amnesia
• dementia
• cognitive deficits causing an inability to perform simple tasks related to concentration

Additionally, Williams had difficulty walking and required a cane due to diminished sensation, reflex abnormalities and a resulting leg ulcer.

A Manhattan jury found the defendants (the bus driver and the NYCTA) 100% at fault and on March 10, 2009 awarded plaintiff $1,800,000 in pain and suffering damages ($900,000 past - 5 1/2 years, $900,000 future - 13 years).

The defendants did not challenge the amount of damages on appeal instead arguing that there were several significant errors by the trial judge that mandated a reversal of the liability verdict. The appeals court agreed in Williams v. Hooper (1st Dept. 2010) and the case has now been remanded for a new trial.

The appellate judges reviewed the trial testimony and concluded that the jury was "irrational" and "inexplicable" in finding that plaintiff bore absolutely no responsibility at all for the happening of the accident. Even assuming the bus driver was negligent, they wrote, plaintiff's own negligence was "indisputable" in view of the fact that he stepped off the curb into Madison Avenue without first looking for oncoming vehicles.

There was another reason the verdict was reversed - the trial judge's erroneous charge to the jury. The judge had told the jury that due to plaintiff's memory loss he could prevail on a lesser degree of proof. Following the ruling in Noseworthy v. City of New York (Court of Appeals, 1948), trial judges have routinely tried to mitigate the unfairness of effectively foreclosing recovery by a plaintiff who is otherwise unable to present a case because of amnesia stemming from the very accident for which he seeks to hold a defendant liable.

The Noseworthy charge (PJI 1:62), as it's come to be known, though, is only available where the memory loss has left a plaintiff unable to describe the occurrence and in this case Williams had testified and recalled the important facts of the accident at a pre-trial hearing, a pre-trial deposition and in the trial itself. Therefore, the majority of the appellate court judges ruled that the charge should not have been given and the jury should not have been told that it was permitted greater latitude in inferring negligence on the part of the bus driver. 

It's unlikely this case will settle, despite the fact that the damages award was unchallenged. The NYCTA will try to show the new jury that plaintiff bears substantial, if not full, responsibility for his own injuries. And the plaintiff will try to show that whatever small amount of fault he may bear, this accident was caused overwhelmingly by the bus driver.

Inside Information:

• The appellate judges split 3-2 on whether Williams was entitled to the Noseworthy charge and plaintiff could seek a ruling allowing the charge from New York's highest court, the Court of Appeals.
• The defendants' decision not to challenge the amount of damages was risky and all but precludes them from claiming it's excessive should a new jury find liability on their part and assess damages in a similar amount.
• Plaintiff brought in an accident reconstruction expert who advanced a safe-cushion theory of liability and concluded that the bus driver violated rules of basic safety when he approached the bus stop at less than three feet from the curb. He concluded that buses headed for stops should maintain a distance from the curb of at least 6-8 feet. The defense argued that imposing such a standard would violate common sense considering the location of many special bus lanes already existing in Manhattan and the duty of bus drivers to let departing passengers off as close to the curb as possible (on pain of incurring liability). The appellate majority would allow the advancement of this theory but the two concurring judges not only found no basis in law for such a theory and no regulations or industry standards to that effect but also they stated it would be unjust to allow future plaintiffs to rely on it in suing bus companies and drivers.

This case may take several twists and turns before ultimate resolution - a new trial is likely - and we will follow them all.

Update: Plaintiff asked the appellate court for a clarification as to the damages issue and on March 8, 2011, the appellate court issued a new decision in which it clarified that the new trial will address liability issues only and pain and suffering damages, if the new jury finds liability upon the defendant, are set at $1,800,000. Actual damages to be paid by the defendant would, of course, be reduced by plaintiff's percentage of comparative negligence, if any.

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 On May 26, 2006, Veena Sadhwani, then 77 years old, was struck by a bus making a left turnonto Third Avenue from 32^nd Street in New York City. The bus driver never saw her before impact which he said took place about 1/3 of the way through the pedestrian cross-walk.

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