On March 7, 2003, a cold, icy and windy morning, Julio Alieca took a city bus to visit his mother in the Bronx. The driver stopped near the intersection of 174th Street and Harrod Avenue and the 33 year old Alicea stepped out of the rear door down onto accumulated snow in the street, slipped, fell down and sustained a bimalleolar fracture of his ankle (where the lateral malleolus and the medial malleolus are both broken and the ankle is unstable).
In the ensuing lawsuit, on April 1, 2009, a Bronx jury found the city and its transit operating authority fully at fault for the accident because (a) the driver stopped in the middle of the roadway rather than at the designated bus stop and (b) the city had failed to remove the snow which was from a two week old storm. Liability was apportioned 25% to the driver and 75% to the city.
After ruling on liability, the jury awarded pain and suffering damages in the sum of $941,760 ($158,960 past – 6 years, $782,800 future – 38 years).
The city made a post-trial motion seeking dismissal of the entire case notwithstanding the verdict and plaintiff cross-moved contending that the verdict for past pain and suffering was inadequate. The trial judge denied both applications.
Now, in Alicea v. City of New York (1st Dept. 2011), the liability verdict has been upheld but the plaintiff’s request to increase his past pain and suffering award has been granted. The appellate court found that $158,960 for plaintiff’s past pain and suffering was inadequate and ordered a conditional increase to $400,000. Thus, the total pain and suffering award now stands at $1,182,800 ($400,000 past, $782,800 future).
In addition to the malleoli fractures, plaintiff sustained a syndesmotic injury – there was a tear in the syndesmotic ligament that prevented the tibia and fibula from coming together. Therefore, a large screw had to be surgically inserted to allow the ligament to heal.
Mr. Alicea was required to undergo three surgical procedures:
- Open reduction internal fixation (ORIF) three days after the accident in which a 10 hole metal plate and screws were installed in the ankle, as well as the syndesmotic screw from the fibula across the tibia
- Removal of the syndesmotic screw, about a year after the accident
- Removal of all of the remaining metal screws and plates, about four years after the accident
What the ankle looks like after typical ORIF for a bimalleolar fracture:
Mr. Alicea was left with permanent and significant loss of motion in his ankle, pain, stiffness and difficulty walking. He could no longer engage in activities with his children such as martial arts training and running with his teen-age son. At the time of trial, he walked with a limp and his medical expert testified that his condition would not improve and that Alicea already has post-traumatic arthritis that will probably require ankle fusion surgery.
The appellate court cited three ankle injury cases to support its ruling that past pain and suffering damages should be increased from $158,960 to $400,000:
- Hopkins v. New York City Transit Authority (1st Dept. 2011) – $625,000 affirmed for a 22 year old woman with trimalleolar fractures, ORIF and arthritis [discussed by us, here]
- Colon v. New York Eye Surgery Assoc., P.C. (1st Dept. 2010) – $950,000 for a 55 year old woman with an ankle fracture that developed residual reflex sympathy dystrophy (RSD) [discussed by us, here]
- Lowenstein v. Normandy Group LLC (1st Dept. 2008) – $1,150,000 for a 51 year old with a trimalleolar ankle fracture requiring surgery and shoulder fractures requiring immobilization [mentioned by us, here]
- The defense did not put on any medical expert to testify with the result that the only medical testimony was from plaintiff”s expert, orthopedic surgeon Stuart Remer, M.D.
- Plaintiff had been an armed security guard who was out of work for six months due to his injuries from the accident.