A few weeks after the 9-11-01 tragedy, Donna Fisk, then 49 years old, moved from Florida to New York to volunteer at what became known as Memorial Park,  (a site at the Office of the Chief Medical Examiner of the City of New York on East 30th Street) where remains were identified.

Mrs. Fisk’s job was to input computer entries at an on-site trailer and give tours to new volunteers. After more than seven months and her last day of service, on May 16, 2002 Mrs. Fisk  tripped and fell over the tines (the "forks") of a forklift that extended six feet across her pathway about four inches above the ground at the site sustaining an injury to her knee that required surgery.

Here is a forklift with tines similar to those over which Mrs. Fisk fell:

Seeing two men with cameras peering into the site’s entrance about to violate strict rules against photography at the site (enacted to protect the privacy of families of the deceased), Mrs. Fisk had left her trailer determined to stop them.

In her fall, Mrs. Fisk’s knee hit the corner of one of the tines resulting in the following injuries:

  • significantly comminuted right patella fracture with the articular surface of the anterior pole in five bone fragments
  • ruptured patella tendon
  • open reduction internal fixation (ORIF) and tendon reattachment surgery
  • six inch surgical scar

Here are the several types of patella fractures:

Plaintiff’s injuries from the accident left her with permanent disabilities including:

  • inability to stand for long periods preventing resumption of duties as church lector
  • instability in the knee joint making it difficult and painful to squat, kneel or bend
  • significant reduction of ability to hike which plaintiff regularly enjoyed before
  • pain in and about the knee (qualitatively and quantitatively different from pre-existing polio-related pain)

Mrs. Fisk sued the city and in a trial that ended on October 30, 2007, the Manhattan jury found that the city had breached its duty as a landowner in that the location of its forklift created an unsafe condition. Plaintiff was awarded pain and suffering damages in the sum of $500,000 ($250,000 past – 5 1/2 years, $250,000 future). On appeal, though, in Fisk v. City of New York, the city won a reversal of the verdict and a new trial on liability because the jury failed to reduce the award to account for plaintiff’s own negligence.

The city had argued during trial that even if it was negligent so was the plaintiff in that she assumed a risk (tripping over the forklift) when it was unreasonable to do so in view of her pre-existing disability (childhood polio affecting her lower leg) and the fact that her conduct was unreasonable in proportion to any alleged danger (i.e., confronting people taking prohibited photographs).

The jury agreed that plaintiff was negligent but found that her negligence was not a proximate cause of her injuries. Those findings, the appellate court held, could not have been reached by any valid line of reasoning, were therefore irreconcilable and require a reversal of the verdict and a new trial on liability.

Without stating why, the appellate court concluded that the jury’s damages award does not deviate from what would be reasonable compensation and that if plaintiff prevails on liability in a new trial then then the damages award will apply, subject to any reduction for a finding of liability against the plaintiff.

Here are the cases discussed by the trial judge (the Hon. Karen S. Smith) in her post-trial decision upholding the verdict:

Inside Information: The jury in Fisk v. City of New York awarded $500,000 for pain and suffering in a patella fracture case notwithstanding plaintiff’s childhood polio that affected her same leg. Mrs. Fisk, formerly a school teacher, retired in 1990, classified as totally disabled.

  • Plaintiff argued that her pre-existing polio affected only her lower leg, not her knee and that she had not needed any walking aids before the accident.
  • The defense argued that polio affected plaintiff’s hips, that before the accident she’d needed several leg surgeries (including a 1985 ankle fusion) and that she had been a slow walker with a limp.