On March 24, 2007, Fitzroy Burnett was working for the transit authority as part of a track removal and replacement project in the subway tunnel at the 155th Street station in Manhattan. Burnett was attempting to remove shoring stuck in the concrete skeletonized track. He slipped and fell backwards onto a track due to the presence of water that had been allowed to accumulate in his work area. As a result, the 51 year old struck his head, shoulder and back and was unable to get up due to severe ankle pain. Burnett was immediately taken by ambulance to the local hospital.

Burnett sued the City of New York arguing that, under Labor Law 241(6), it was liable as the owner of a construction site that was unsafe due to the accumulated water. A Manhattan jury concluded that each side was equally at fault for the accident and awarded pain and suffering damages – before apportionment – in the sum of $250,000 ($175,000 past – four years, $75,000 future – one year).

The defendant’s post-trial motion to have the verdict set aside on liability grounds was denied while the plaintiff’s cross-motion to increase the damages award  was granted. The judge determined that reasonable compensation for plaintiff’s pain and suffering was $300,000 ($210,000 past, $90,000 future), after the 50-50 liability split.

In Burnett v. City of New York (1st Dept. 2013), the appellate court affirmed the liability apportionment as well as the trial judge’s increase of the pain and suffering damages award from $250,000 pre-apportionment to $300,000 post-apportionment (plus $200,000 for economic damages). Thus, the actual amount awarded to plaintiff for all damages stands at $500,000.

At the hospital immediately after his accident, Burnett was diagnosed with a fractured ankle. He was treated and released with a soft cast.

Within three days of the accident, Burnett ended up in the hospital again after he suffered a protracted grand mal seizure at home. His treating neurologist testified that the seizure was caused by head trauma from the accident and his orthopedic surgeon testified that convulsive movements during the seizure seriously exacerbated a non-displaced shoulder fracture caused in the accident three days earlier. This testimony – unrebutted by any contrary medical testimony – was the major factor in the judicial determinations that the jury’s pain and suffering awards were inadequate.

Here, then, are the injury details:

  • lateral malleolus ankle fracture reduced via open reduction internal fixation with plates and screws
  • four part comminuted humerus fracture and shoulder dislocation requiring hemiarthoplastic prosthetic replacement surgery
  • shoulder labral and rotator cuff tears surgically repaired
  • unable to walk for several months without using a cane; as of trial, ankle still stiff and walking difficult
  • extensive physical therapy for ankle and shoulder for two years
  • as of trial, shoulder pain was constant with movement, range of motion was severely restricted and shoulder function was diminished by 50%
  • unable to enjoy cricket, play sports with his son or do his regular home handyman chores
  • post-traumatic seizure disorder requiring lifelong medications

 Inside Information:

  • Plaintiff’s wife claimed loss of consortium damages but the jury declined to award her any damages at all.
  • Plaintiff returned to work six months after the accident (in an office position as a timekeeper, not as a trackworker) at the same salary he’d been receiving before.
  • In effect, without explicitly so stating, the judges evaluated plaintiff’s total damages (pain and suffering plus economic) at $1,000,000. That is the only conclusion one can logically draw since the courts affirmed the 50-50 liability split and made clear that plaintiff was to receive after apportionment the sum of $500,000 for his damages.
  • It does not appear that there was any evidence to support the trial  judge’s decision to increase plaintiff’s past and future loss of earnings awards from $81,500 (one-half of the jury award of $163,000) to $197,000 (equal to $394,000 before apportionment) and  the appellate court did not even address that issue. Perhaps the appellate court simply agreed with the $500,000 overall  net award to plaintiff ordered by the trial judge and had no interest in separately discussing the different items of damages.
  • Since there was no evidentiary basis to affirm the trial judge’s increase of the economic damages awards, then one must conclude that the appellate court evaluated plaintiff’s pain and suffering damages at $919,000 ($1,000,000, representing the overall $500,000 award before apportionment, less $81,000, representingone-half of the past and future loss of earnings awards). If so, then $919,000 represents the minimum found by the court to be permissible for pain and suffering damages in this case.