On November 15, 2003, Conchita Ortiz tripped and fell over a building entryway’s improperly raised half-step platform-like structure at 975 Walton Avenue in the Bronx. She sustained a lumbar compression fracture and in her ensuing lawsuit, the jury found that the building owner was negligent (and that plaintiff was too – each was held to be 50% at fault).

Plaintiff testified that she endured five years of unremitting back pain since the accident drastically altering her prior lifestyle as a vibrant, independent woman who traveled, enjoyed her family and took care of others. She claimed she is now a disabled, fearful woman  who does almost none of the things she used to do before (all pain-free), such as walking freely to nearly unlimited distances on a regular basis, cooking, cleaning, shopping and caring for her ailing husband and sister.

The jury awarded Ms. Ortiz a mere $20,000 for her pain and suffering damages ($10,000 past – 5 years, $10,000 future – 5 years). With her own comparative negligence, that meant she would receive a total of only $10,000.

Here is what a spinal compression fracture looks like:

And, for some detailed medical information on the causes of and treatment for spinal compression fractures, go here.

Ms. Ortiz appealed the verdict as to the amount of damages, arguing that $20,000 was much too low. The defendant countered that $20,000 was just fine.

In Ortiz v. 975 LLC, the appellate court has now ordered an increase in the damages verdict – from $20,000 to $90,000 ($40,000 past, $50,000 future) before apportionment.

Unfortunately, the appellate court’s decision contained little of any value to the reader as to the injuries suffered in this case or why and on what basis the judges determined to increase the award. We had to uncover it all – even the simple fact that the injury was a compression fracture at L-1.

Here are the rest of the important details as to the injury:

  • plaintiff was 76 years old when she fell and 81 at trial
  • she was hospitalized for nine days and then on bed rest at home for two weeks
  • she underwent very little further medical care for her injuries – just five physical therapy visits and two visits to an orthopedist recommended by her attorney three years after the accident
  • before the accident she never had any back pain or treatment but it was undisputed (her expert agreed) that she had pre-existing degenerative arthritis in her back as well as osteoporosis

The defense medial expert ascribed great significance to plaintiff’s pre-existing arthritis and osteoporosis allowing defense counsel to urge upon the jury that plaintiff’s new complaints of back pain were related directly to and the result of her prior condition.

Here is what the vertebrae look like when affected by osteoporosis (porous bones):

Plaintiff, of course, urged that since she never before had any back pain, or any treatment related to her back, all of her current complaints of pain and disability had to have been caused by her trip and fall trauma. The jury obviously disagreed in view of its paltry $20,000 evaluation of plaintiff’s injury.

A jury may certainly consider, and will be directed by the trial judge to do so in the appropriate case, whether and to what extent a plaintiff’s pre-existing medical condition may have made her more likely to sustain a new injury (here, the L-1 compression fracture) or whether the defendant’s negligence aggravated an old injury. These principles are well established and incorporated into jury instructions such as:

  • PJI 2:282 (plaintiffs may recover damages to the extent their pre-existing conditions are aggravated by the defendant’s negligence) and
  • PJI 2:283 (defendants are liable for those injuries that are greater than those that would have been sustained by a normal healthy person)

The problem for plaintiffs is that it’s difficult for jurors to separate out which current and post-trial future complaints of pain and disability are related to a  plaintiff’s prior condition and which are related just to the new trauma. They often award very little for the "new" injuries claimed by a plaintiff when there are pre-existing conditions similar to the new injuries. That’s what appears to have happened to Ms. Ortiz.

When reviewing the amount of a jury’s pain and suffering damage award, appellate judges state repeatedly that they too are greatly influenced by evidence of a related pre-existing condition.

In cases such as Mejia v. JMM Audobon, Inc. (1st. Dept. 2003) and Vaval v. NYRAC (2nd Dept. 2006), both cited by the defense in Ortiz v. 975 LLC, the appellate courts upheld low pain and suffering verdicts (in the $25,000 range) for significant injuries where there was relevant evidence of pre-existing conditions.

At first glance, even the increased award of $90,000 for Ms. Ortiz’s L-1 compression fracture seems quite low but on review and analysis of the facts, one can understand why the jury came in with such a figure and why the appellate judges refused to increase it beyond $90,000. This was an 81 year old woman with very little treatment and a pre-existing condition directly related to the injuries claimed at trial. The jurors clearly did not believe that she had no prior pain or disabilities nor were they impressed with the severity of the "new" or increased injuries given the lack of significant treatment. 

Every injury carries with it an appropriate range of awards, and the appellate courts intervene only when the verdict falls outside that range. Thus, if a jury’s award is unreasonably low, an appellate court may raise it to a minimally acceptable level. The issue in Ortiz v. 975 LLC was  whether plaintiff’s $20,000 jury award was so low that it fell short of the minimum of what would be considered the low end of a reasonable range. The $90,000 additur here is therefore the lowest amount that the appellate judges felt was permissible under the facts for Ms. Ortiz’s pain and suffering.

Inside Information:

Plaintiff’s counsel remains unsatisfied with the increase but stated he will accept the court’s ruling and stipulate to the $90,000 thus ending this case once and for all.