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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I know I was a bit steamed last week when I took sides against a plaintiff and her lawyers for suing seven different parties after she was hit by a foul ball at a Hudson Valley Renegades minor league baseball game while seated in a left field picnic area in the stadium. Here, I suggested that Judith Rosenfeld's lawsuit should never have been brought - she shouldn't have been allowed in the batters box.

While I sympathize with the serious eye injury sustained by Ms. Rosenfeld, her lawsuit had no basis being brought in view of prior court rulings, some from the highest court in New York (the Court of Appeals) and one against the same defendants on very similar facts.

Like it or not, the law in New York is clear: a baseball game spectator who chooses to sit in an area of the stadium that's not protected with a net or fence (when the area behind home plate is) will have no viable lawsuit when struck and injured by a foul ball. And those were the facts in Rosenfeld v. Hudson Valley Stadium Corp.

On that basis, the trial judge threw out her lawsuit, then the appeals court upheld the dismissal. That surely should have been the end of this saga. It wasn't.

This week, Rosenfeld's lawyers filed a motion for reargument or leave to appeal to the Court of Appeals. No new argument is set forth. As with her other attempts, Rosenfeld will strike out again.

This time, though, she should be sanctioned by the court and forced to pay the legal fees incurred by the defendants. Rarely used, such a remedy for frivolous litigation is specifically provided for under Section 130-1.1 of the Rules and Regulations of the Judiciary Law of New York. And recently, an appellate court  invoked this rule to order a plaintiff and its attorney to pay the legal fees of their opponent in a case in which they were held to have pursued a frivolous appeal (Yenom Corp. v. 155 Wooster Street, Inc.).

This is not about punishing a losing plaintiff; rather, it's about fairness to all concerned. Justice for everybody. Suing seven parties to begin with (the engineers and architects who designed the stadium were even included) was bad enough but forcing all those parties through appeal after appeal, incurring many thousands of dollars in legal fees and related costs is unfair. They have repeatedly asserted that there was no basis for the suit in view of the substantial precedent. And they have been right time and again. So what about fairness to them? The defendants should be made whole insofar as their legal fees are concerned. That's justice. That's fair.

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It's got to stop at some point. Some "fans" are trying to ruin our national pastime - the game of baseball. Spectator lawsuits have  been going on for quite some time, as we discussed just last week, here. Now, there's a brand new case and I'll tell you all about it.

Look, I'm a trial lawyer and the only cases I handle are those in which someone caused serious traumatic injuries. And in this new case, Judith Rosenfeld suffered an orbital fracture requiring surgery and some permanent vision loss when she was hit by a foul ball while a spectator at a baseball game. I can get a jury to award hundreds of thousands of dollars (if not more) for pain and suffering for those types of injuries. There's a catch, though. Someone other than my client has to be at fault! That's why I'd have declined Rosenfeld's case had she come to me for representation. There was no one at fault.

Here's what happened. Ms. Rosenfeld went to Dutchess County Stadium in Wappingers Falls, New York on August 5, 2006 to watch the home team Hudson Valley Renegades (Major League Baseball's minor league affiliate of the Tampa Bay Rays) take on the Vermont Lake Monsters. The Renegades won, 3-2.

It's a beautiful ballpark and here's its exterior on opening day this year:

Plaintiff was struck by a foul ball while seated in a picnic area in the Rookies Retreat section:

As you can see, Rosenfeld's seat was in the area furthest away from home plate down the left field line. It must have been quite a hard hit ball to cause a facial fracture.

The real story here began a year later in 2007 when Rosenfeld lawyered up and sued. Her case was tossed out on July 15, 2008 when a judge dismissed all of her claims without a trial. The judge stated that there was sufficient protective netting behind home plate which extended up the foul lines to the dugouts and also there were public announcements made advising fans that they could be reseated behind the nets if they wished. Rosenfeld did not wish.

After the dismissal, Rosenfeld appealed and this week in Rosenfeld v. Hudson Valley Stadium Corp. the appeals court agreed that the case had no merit and was properly dismissed (lower court's decision here). The four judge panel stated that the proprietor of a ball park need only provide reasonable screening for the area of the field behind home plate and, therefore, fans injured by foul balls in other areas do not have viable claims.

Many lawsuits have been asserted over the years for foul ball injuries and the issues were long ago resolved by the highest court in New York - the Court of Appeals  - when it ruled in Atkins v. Glens Falls City School District (1981) that a lawsuit for a spectator's foul ball injuries will not stand when there's a reasonable backstop or netting behind home plate and the fan is injured elsewhere in the park.

In 1984, the Court of Appeals reiterated the rule in Davidoff v. Metropolitan Baseball Club, Inc. and stated that it applied to the dismissal of a lawsuit by a 14 year old girl who lost vision in an eye when hit by a foul ball while seated in a box seat near first base behind a three foot fence.

In yet another case, a season ticket holder, Pianka Ray, M.D., was struck by a foul ball while in his box seat near first base beyond the home plate nets. His case, like all the others before him, was dismissed by the trial judge. He appealed, though, claiming that his case was different from all of the others in that he was distracted by the ball club's team mascot. Here's the kicker: this was a case involving the very same stadium as in the Rosenfeld case. Dismissal of Dr. Ray's case was affirmed in 2003 in Ray v. Hudson Valley Stadium Corp. with the appeals judges stating plainly that the provision of home plate area netting fulfills a ballpark's obligations and a fan injured in seats beyond the netting assumes the risk of an injury and has no viable lawsuit.

In light of the Atkins, Davidoff and Ray cases, how is it that Judith Rosenfeld could sue for her injuries? Simple. One can always sue - start a lawsuit - and there are few if any real penalties for bringing on a frivolous lawsuit.

Rosenfeld's suit was - as it should have been - thrown out, but what of all the costs, time and aggravation suffered by the defendants? There were seven different parties sued, including the stadium owner, the team, the engineers and architects who designed the stadium and even the local chamber of commerce. Each had to hire lawyers and investigators and devote substantial unprofitable time to defending the case. Some of those lawyers are very experienced, successful and probably charged pretty hefty fees. Who reimburses the defendants after they win? No one.

This is the kind of case that will cry out for a loser pays rule to be enacted and one of these days, if cases like this and Nutley v. SkyDive the Ranch (the notorious skydiver's broken fingers case discussed here ) continue to be brought and dismissed, then we may well see legislative action. Many have been discussing for it for years, for example, Walter Olson at Overlawyered.

I hope I have not given the impression that I don't sympathize with Ms. Rosenfeld. I do - insofar as she was injured, I have a great deal of sympathy for her; however, when Roseneld (and her lawyers) claimed that seven different parties were at fault and sued each of them, she was wrong. And that's a fact. Actually, that's the law too.

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The New York City Law Department has released statistics regarding negligence lawsuits against it in 2008 and the top recovery was for an eye injury to a school guidance counselor in the case of Villaseca v. City of New York.

The New York Post reports it this way:

"$8.5 million to a guidance counselor Rodrigo Villaseca, who lost vision in this right eye after an emotionally disturbed kindergartner slammed a broken door in his face at PS 306 in The Bronx."

The door was broken for over a year after the city school knew that the door's hydraulic controller was not operational. This was a $55 part that was specifically installed so that the door could not be slammed shut - a particularly useful device given that this was the only door into a room where the most uncooperative and unruly kids were placed until they calmed down.

Here's the piece of equipment that would have saved the city $8,500,000 for a mere $55 cost:

  Source: DrillSpot, Inc.

In reporting on the $403 million total of negligence awards against the city for last year, the paper mentions several other large suits as well and notes that the total is a 6%  spike over the year before. I don't know whether the reporter was insinuating that the Villaseca case (and the others) are so-called runaway or excessive verdicts or whether she is suggesting, as others such as The Pacific Research Institute and NYTortReformNow.org do, that New York has an unfair and unreasonable litigation environment for defendants in negligence cases due in part to there being no limit (or "cap") on pain and suffering damage awards. I do know that issues such as whether there are too many or too few negligence lawsuits, whether plaintiffs are awarded too much or too little for their pain and suffering and whether damage caps would be fair or even accomplish what its advocates seek are all hotly disputed. For the plaintiffs' side of these issues see: New York State Trial Lawyers Association and TortDeform.com

In the Villaseca case, I can say with confidence that, as usual, a short media account cannot and will not explain even one-half of what happened and why such a multi-million dollar pain and suffering recovery makes sense.

Here are the injuries Mr. Villaseca suffered:

• detached retina of the right eye
• lost all vision in right eye after 9 surgeries
• constant pain
• need for surgical implantation of false eye

Source: VitreoRetinal Surgery, P.A.

Enough? No, there's more:

• the teacher had a pre-existing macular hole condition in his other eye that left him with only peripheral vision in that other eye and the result was extremely limited vision of any kind at all
• inability to work
• need to have his wife help him move about

The Bronx County jury was apparently so impressed with and upset by these injuries that it awarded Mr. Villaseca $8,000,000 for his pain and suffering damages alone. An appeals court found that $5,000,000 was the proper pain and suffering amount (and with an additional $3,500,000 mainly for lost earnings and medical expenses the total was therefore $8,500,000).

Other recent cases involving significant pain and suffering damage awards for eye and vision injuries include:

• Wilson v. Galicia Contracting & Restoration Corp. (2008) - $700,000 pain and suffering award for a 16 year old boy who was struck in his left eye by a falling metal object. After surgery to remove the object, he was left with permanent retina damage.
• Fresco v. 157 E. 72nd St. Condominium (2003) - $2,000,000 pain and suffering verdict for a 35 year old laborer with complete blindness in one eye from a carpentry accident in which a nail flew into his eye. He had a pre-existing condition in his other eye with the result that he's now left nearly totally blind.
• Torricelli v. Pisacano (2004) - $500,000 pain and suffering medical malpractice award after cataract surgery failed requiring two more surgeries and significant overall vision deterioration.

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