James Ciuffo had been working as a laborer for a couple of years for Mowery Construction Company in the Lake George region. He was in excellent physical shape and was a top flight amateur golfer with dreams of becoming a club pro. On March 15, 2005, though, while working at a job site, scaffolding collapsed causing Mr. Ciuffo to fall to the ground and sustain serious foot and ankle injuries.
In his ensuing lawsuit, Mr. Ciuffo was granted summary judgment as to liability (based on Labor Law Section 240) and on June 6, 2011 a trial began limited to the amount of damages to be awarded.
The Rensselaer County jury was presented with substantial evidence as to the 35 year old plaintiff’s injuries:
- complete rupture of the left Achilles tendon, requiring surgery within two weeks
- six weeks in a non-walking cast plus six more in a walking boot
- anterior talofibular ligament tear requiring reconstructive surgery in December 2006 to remove an injured tarsal coalition and reconstruct the ligament
- two more weeks in a non-walking cast
- Achilles tendinosis – a thickening of the tendon due to abnormal scar tissue
- continuing pain and inability to return to prior activities such as running, walking on uneven surfaces and playing golf at a professional level
- third surgery recommended – to break up scar tissue and to accomplish tendon transfer in plaintiff’s Achilles tendon
The jury awarded Mr. Ciuffo $53,000 for his pain and suffering damages ($18,000 past – six years, $35,000 future – 35 years).
The trial judge ruled that the award for past pain and suffering was inadequate and ordered an increase to $50,000 (resulting in a total award of $85,000).
The defendant neither paid the $50,000 conditionally increased past damages award nor appealed from it. Therefore, there will be a new trial limited to the issue of past pain and suffering damages. It is scheduled to begin in September.
Plaintiff appealed on the issue of future pain and suffering damages arguing that $35,000 was unreasonably low. In Ciuffo v. Mowery Construction Co. (3rd Dept. 2013), however, $35,000 was affirmed as a reasonable sum for plaintiff’s future pain and suffering.
The appellate judges conceded that the award is “relatively modest” but they justified it on the basis of plaintiff’s post-accident activities. In particular, they agreed with the defense that plaintiff’s new career as a golf professional (albeit at a driving range, not as a player) gave the jury a sufficient basis to award as little as $35,000 for plaintiff’s future damages. They were also impressed with the fact that plaintiff sought no medical treatment following his second surgery until a single visit with his surgeon three years later in 2010.
Plaintiff argued that he needed to work to support his young family and that he did so in great pain and in a very limited fashion. He testified that he worked at the driving range only because he could no longer work in construction (he left the industry in 2006) and he was physically unable to pursue his dream of playing golf professionally.
- Normally, an employee is not permitted to sue his employer for personal injury damages in a case like this. Here, though, Mowery Construction Company (Mr. Ciuffo’s employer) did not carry workers compensation insurance in plaintiff’s favor so the usual ban did not apply.
- Five of the six jurors were college students (trial was held in June, when they were on school break); none were golfers.
- The court correctly noted that there is very little appellate case law regarding reasonable compensation for an Achilles tendon rupture and that the decision in the leading case, Kouho v. Trump Village Section 4, Inc., (2d Dept. 2012) did not mention the amount of future damages. Had the judges inquired, though, they would have discovered from my article on that case, here, or from a review of the public records in that case such as the judgment or the trial transcript, that the affirmed future damages award in Kouho was $60,125 (three years).