On September 21, 1998,at about 12:30 p.m., Shelton Stewart took the subway train from his job in Manhattan to his home in the Bronx. He got out at the Gun Hill Station and began walking down the subway stairways to the street.

Stewart slipped and fell on what he later claimed was pigeon excrement.

Pigeons are often seen on and around stairways at the citys subway stations:

Stewart, then 47 years old, was rushed to Jacobi Medical Center where he was diagnosed with a cervical contusion and admitted for one month of treatment. He ended up with several spinal surgeries and claimed permanent and total disability from the fall.

Stewart sued the city’s transit authority charging it was negligent in allowing the stairway to remain slippery, especially so because this (the pigeon droppings) was a a recurring condition. The defendant vigorously denied liability and argued that plaintiff alone was responsible for his fall.

On December 19, 2007, after many years of contentious litigation, in Stewart v. New York City Transit Authority (Index # 13911/99; Supreme Court, Bronx County), a jury ruled that both the city and the plaintiff were negligent (the defendant 80%, plaintiff 20%).

The jury set Mr. Stewart’s pain and suffering damages at $4,700,000 ($2,000,000 past – 10 years, $2,700,000 future – 20 years). That amount, along with loss of earnings and medical expense damages, was subject to a 20% reduction for plaintiff’s comparative fault.

The transit authority appealed claiming that there was no way any liability at all should have been assessed against it and, alternatively, that the damage awards were unreasonably excessive and should be reduced.

Last week,  in Stewart v. New York City Transit Authority (1st Dept. 2011), the appellate court affirmed the $4,700,000 assessment for pain and suffering damages.

The court decision sets forth the basics and here are the details of plaintiff’s injuries:

  • cervical spine compression fractures and contusions at C4-C5
  • posterior cervical decompression and laminectomy at C3-C7
  • thoracic spine compression fractures at T11-T12
  • fusion surgery at C4-C5 with implantation of hardware, plates and screws
  • post-operative Methicillin-resistant Staphylococcus aureus (MRSA) infection requiring debridement surgery
  • lumbar spine herniated discs requiring lumbar laminectomies and posterior spinal fusion at L3-L5 with six large pedicle screws and plates and an iliac crest bone graft

Lumbar fusion surgery with pedicle screws and bone graft:

Even after all of the surgeries, extensive physical therapy and several epidural steroid injections and nerve blocks, Mr. Stewart remained in great pain and his back muscles were spastic. Ultimately, to pump anti-spasm medication on a continuous basis, his doctors prescribed and surgically implanted a synchronized baclofen pump:

At trial, plaintiff testified that he was still very much disabled from the accident:

  • needs a walker to ambulate
  • has spasms in his spine after sitting too long
  • has difficulty sleeping, bathing and dressing himself
  • was unable to return to his job (as a doorman) nor even an easier pizza deliveryman job that he tried

Plaintiff’s medical expert testified that, due to the accident, Mr. Stewart is permanently and totally disabled.

As to damages, the defense focused upon a prior injury. In June of 1997 (a little more than a year before the accident), Mr. Stewart underwent surgery to remove two herniated cervical discs. Plaintiff admitted that before the subject accident he had some difficulty walking dues to weakness in his legs for which he occasionally used a leg brace and a cane until a few months before the fall.

Mr. Stewart had been working without any disability at the time of his fall and his medical expert opined that whatever his prior conditions were, the subway stairs fall was “the straw that broke the camel’s back,” caused the need for both spinal fusions and the baclofen pump and left him totally and permanently disabled.

Inside Information:

  • The defense expert, orthopedic surgeon Phillip Keats, M.D., admitted that he hadn’t practiced medicine in seven years, made over $1,000,000 a year from litigation (almost exclusively working for defendants) and 25% of his court appearances were for the New York City Transit Authority.
  • Several trial rulings went against the defendant including the limiting of evidence of plaintiff’s prior injury to the damages part of the trial (not allowing it to be presented in the liability portion as a cause of the fall) and precluding undisclosed until trial witnesses (city employees who would have stated the stairway was clean and plaintiff said he fell because he missed a step).
  • As a result of his doorman and porter jobs, Stewart claimed he’d become a bit of a self-taught expert on pigeon excrement, having seen and cleaned a considerable amount over the years. He was allowed to testify as to color and texture differences between newly deposited and older droppings and what the defendant should and could have done to rid the area of pigeons.
  • Plaintiff’s attorney was Bob Genis, of Sonin & Genis, well known among New York’s trial lawyers as an expert on evidence law (which clearly was a factor in his superb achievements in this case).
  • UPDATE: On December 30, 2014,  the appellate court issued a new decision in this case. Plaintiff’s attorneys were permitted to retain the additional legal fee provided for in the retainer agreement in connection with the successful defense of the verdict on appeal.