Ricky Love used to hang out at a Brooklyn nightclub known as Rockwell’s and went there with friends at 2 a.m. on January 29, 2006. I doubt he’ll be returning. He ended up in an altercation and sustained a fractured jaw.
Here’s Rockwell’s, where it all began:
At Rockwell’s, Ricky and a friend went to smoke a cigarette in an outside alleyway when he got into an argument with another customer about a spilled drink. A bouncer interceded and ejected Love from the premises.
Love claimed that the bouncer, without any provocation, repeatedly struck him in the face and banged his head against the wall causing his jaw to fracture.
Ricky sued Rockwell’s and in 2009 a Kings County jury awarded him $250,000 for his three years of pain and suffering (he made no claim for future damages).
Now, in Love v. Rockwell’s International Enterprises, LLC, (2d Dept. 2011), the appellate court has ordered a reduction of the pain and suffering verdict to $175,000.
We usually mean the mandible when referring to the jaw. It’s U-shaped and stretches from ear to ear and is joined to the upper part of the head by two temporo-mandibular joints:
The bouncer was never identified and did not testify. In fact, the defendant argued on appeal that the case should have been dismissed because all of its bouncers were independent contractors – not employees – and plaintiff could only prevail against the club itself if he could prove the bouncer was an employee. This issue, though, was not raised at or before trial so the appellate court ruled it was waived.
In reducing plaintiff’s jury verdict by $75,000, the appellate judges mentioned that this is a jaw fracture case but that’s all they said as to the injury details:
- displaced mandible fracture requiring ORIF surgery to implant a metal plate and screws
- four day hospital admission
- jaw wired shut for six weeks
- at time of trial, jaw still numb and sensitive to hot and cold, and plaintiff had difficulty eating
There’s no explanation of why the judges reduced Mr. Love’s jury award but there is a citation to one case that is relevant. In that case, Atkinson v. Buch (1st Dept. 2005), a dentist mistakenly fractured his patient’s jaw during a tooth extraction procedure. He wired it shut immediately (while the patient was still under local anesthesia) but for the ensuing wight weeks Atkinson was in pain, didn’t work and could only eat through a straw. The jury awarded $15,000 for pain and suffering ($10,000 past – 3 1/2 years, $5,000 future – 1 year); however, the appellate court increased the award to $80,000 ($75,000 past, $5,000 future).
Here are two other jaw fracture appellate cases that rule on pain and suffering damages:
- Barnes v. Paulin (2d Dept. 2010) – $200,000 ($100,000 past – 3 years, $100,000 future – 25 years) for a 19 year old in a car crash who sustained a mandible fracture and a nerve injury, underwent surgery to implant a plate and screws and whose jaw was wired shut for seven weeks. We discussed this case in detail, here.
- Kennedy v. City of Yonkers (2d Dept. 1999) – $100,000 reduced from $190,000 (all past – 3 years) for a 15 year old boy with a double mandible fracture whose jaw was wired shut for seven weeks and who at trial still had popping and clicking in his jaw.
- Counsel for Rockwell’s argued in summation that the incident never happened and implored the jurors that even if they found his client liable then plaintiff’s injuries were so minimal that there should be no award at all for any pain and suffering.
- Counsel for Love asked the jury to award $300,000 all for past pain and suffering (conceding that his client hadn’t complained about pain since the surgery).
- The evening began at a private party at an apartment around 10:30 p.m. where Love admitted he "probably took an [ecstasy] pill." He arrived at Rockwell’s around 2 a.m., got a drink, went to the bathroom and then for a smoke in the alley where he claimed the bouncer broke his jaw.