After a morning of shopping on April 16, 2005, Mildred Manuel boarded a city bus to head home. At her stop, Rockaway Parkway and Schenck Street in Brooklyn, the 64 year old Ms. Manuel stepped out of the bus and fell because of a roadway hole, thereby sustaining serious knee injuries.
A Kings County jury ruled that the bus driver had stopped in a dangerous place, in front of a rough spot in the roadway, thus rendering the city 100% liable for Ms. Manuel’s injuries.
The jury then awarded plaintiff pain and suffering damages in the sum of $500,000 ($250,000 past – 4 years, $250,000 future) for the following knee injuries:
- large torn medial meniscus
- subchondral bone damage
As a result, Ms. Manuel underwent the following treatment:
- emergency room on date of accident
- physical therapy for several months
- arthroscopic surgery seven months post-accident (to repair the meniscal tear)
Ms. Manuel testified that she still has nagging pain, burning, clicking and popping in her knee and that she now no longer takes buses, has cut down on doing her laundry and cooking and has an unsteady gait.
Her doctor testified that Ms. Manuel has early arthritis from the accident, will not likely to improve and in 5-10 years may need a total knee replacement.
Defendant appealed, arguing:
- unsuccessfully, that the bus driver could not have been found negligent because Ms. Manuel herself couldn’t even see the roadway defect (the hole) and that it was trivial as a matter of law;
- successfully, that the damages verdict should be set aside because the trial judge should have told the jury that before it could award any pain and suffering damages it had to determine whether or not plaintiff’s injuries qualified as "serious" under New York’s Insurance Law Section 5102(d), one of the provisions of the so-called no fault insurance law; and,
- alternatively, that $500,000 is excessive for pain and suffering damages under the facts in this case.
In Manuel v. New York City Transit Authority (2d Dept. 2011), the appellate court affirmed the liability verdict but the money judgment was reversed and the case sent back for a new trial on damages.
Under the law, when injuries arise out of the use or operation of a motor vehicle, a plaintiff has the burden of proving that her injuries meet at least one of the nine definitions of serious injury under Insurance Law Section 5102(d). That’s a tough burden in many cases – especially those that do not involve broken bones and, as here, involve only torn ligaments.
For example, in McLoud v. Reyes (2d Dept. 2011), an appellate court dismissed the case without allowing a trial, ruling that the mere existence of a torn meniscus is not evidence of a serious injury in the absence of objective evidence of the alleged physical limitations resulting from the injury and its limitation.
Had the trial judge in Ms. Manuel’s case required the jury to decide whether or not she met the threshold, they would have awarded no pain and suffering damages at all if they found that Ms. Manuel’s injuries did not qualify as "serious." The new jury will now be instructed to answer the threshold question.
Since the entire damages case was sent back for a new trial, the defendant’s claim that $500,000 was excessive was not ruled upon by the appellate judges.
Had the jury’s damages verdict been ruled upon as to reasonableness of the amount (and if a new jury finds that the threshold has been met), it’s likely that a $500,000 pain and suffering verdict would be affirmed as reasonable given the following cases involving similar knee injuries:
- DeCastro v. Andrews Plaza Housing Associates (1st Dept. 2011) [discussed at New York Injury Cases Blog, here] – $600,000 affirmed in a trip and fall case for a 45 year old woman with a chondral defect fracture and anterior cruciate ligament tear who underwent arthroscopic surgery (and may need back surgery for a herniated disc)
- Harris v. City of New York Health & Hospitals Corp. (1st Dept. 2008) – $650,000 in a trip and fall case for a 76 year old woman with torn menisci in both knees who fell and underwent arthroscopic surgery and may need a total knee replacement
- Diaz v.City of New York (1st Dept. 2011) [discussed at New York Injury Cases Blog, here] –$1,400,000 in a slip and fall case for a 40 year old man with a torn meniscus who underwent four surgeries and needs a total knee replacement
- The defense orthopedic surgeon testified that Ms.Manuel had not suffered a torn meniscus at all; rather, he opined that her MRI merely showed minor wear attributable to normal aging and degeneration (not trauma).
- Prior to the accident, Ms. Manuel had been suffering from a brain tumor that caused her to rely on her daughter to help her with activities of daily living and the defense argued that some of plaintiff’s post-surgical knee symptoms were traceable to an uneven recovery from her tumor.
- Plaintiff’s attorney asked the jury to award her in excess of $1,000,000 in pain and suffering damages arguing that the injury "… crippled [plaintiff] for the rest of her life."