On September 1, 2000 Jennifer Arietta was struck by an eight foot piece of plywood accidentally dropped from the third floor window at 513 Beekman Avenue in the Bronx. The plank was being used as a window cover by contractors renovating the building and ten year old Jennifer just happened to be walking on the sidewalk below with her brother.

Plywood windows, like this, are common at construction sites but they are not supposed to fall three stories to the ground:

Rushed to the local hospital, Jennifer was diagnosed with a displaced fracture of her right leg’s distal femur and she was placed in a full leg cast from her upper thigh down to her foot. After three months, the cast was removed and Jennifer underwent five months of physical therapy.

The fracture was classified as Salter II, meaning that it was through the growth plate and epiphysis (the site where most of the longitudinal growth of bones occurs):

In her ensuing lawsuit, Jennifer won full liability against the construction site owner and two contractors and then, on May 18, 2007, a Bronx County jury determined that her pain and suffering damages should be $100,000 (zero for the past – 6 ½ years, $100,000 future – one year).

In their appeal of the verdict, Jennifer’s attorneys argued that the damages award was insufficient and inconsistent. The appellate court in Arietta v. Shams Waterproofing, Inc. has issued its decision ordering a new trial on damages because there was “no rational explanation” for the failure to award any damages at all for past pain and suffering.

At the time of trial, six and a half years after the accident, Jennifer stated that she had substantial pain in her right leg in addition to back and hip pain.

The defense doctor testified that Jennifer’s fracture healed well, any pain she was experiencing was from other conditions and she would need no surgery in the future related to this accident.

Jennifer’s doctor, though, testified that the fracture led to a premature closing of the growth plate and that as a result she suffers a four centimeter shortening of her leg and will need extensive surgery to lengthen her leg impairing her ability to walk.

There are multiple methods for leg lengthening surgery but many involve application of an external fixation device, like the one shown here applied to the lower leg:

The appellate court’s reversal was narrowly limited and focused only on the improper failure to award any damages for past pain and suffering. The court did not address the issues of whether there was a basis for the jury’s finding that Jennifer’s future pain and suffering should be limited to only one year and whether $100,000 is an unreasonably low amount for Jenifer’s future pain and suffering.

Inside Information:

  • Jennifer was born with cerebral palsy which required surgery on her left leg before this accident.
  • One year after this accident, Jennifer underwent a right leg derotational osteotomy to correct some long-standing problems related to her spine and abnormal tilting of her pelvis.
  • Jennifer’s 12 year old brother, Oscar, was also injured in the accident sustaining a torn ligament in his elbow requiring a brace for eight months and arthroscopic surgery in the future. Oscar was awarded $13,600 for his pain and suffering (zero for the past; $13,600 future – one year). The appellate court reversed this verdict as well.