On March 2, 2009, Mark Grinberg was a project manager for URS Corporation working at a construction site when he slipped and fell on a piece of plywood that was covered plastic.

The accident took place at the Central Park Police Station then under renovation:

A contractor, C&L Contracting Corp., had placed plastic covered plywood over holes it had excavated to protect concrete footings below from snow that was expected to fall. Unfortunately, there were no warning cones placed and snow fell and covered the whole area; Mr. Grinberg did not see the plastic before he fell.

Grinberg, then 60 years old, sustained severe ankle injuries and claimed in a lawsuit filed later that year that the plastic covered plywood constituted a dangerous condition for which C&L should be held liable. A Manhattan jury agreed, at least in part, when on June 11, 2012, it ruled that C&L was 45% liable for the accident due to its negligent maintenance of the site (and that plaintiff was 55% at fault for his own accident).

As to damages, there was testimony from orthopedic surgeons for both sides (as well as the plaintiff himself) and then the jury made an award for plaintiff’s pain and suffering damages in the sum of $110,000 ($75,000 past –  three years, $35,000 future – 17 years).

The trial judge denied plaintiff’s post-trial motion seeking an increase in the damage awards.

Plaintiff appealed, successfully, claiming that the award was inadequate.

The court, in Grinberg v. C&L Contracting Corp. (1st Dept. 2013), determined that the pain and suffering damages should be increased by $840,000. The award now stands at $950,000 ($500,000 past, $450,000 future).

As indicated in the court’s decision, plaintiff’s injuries included:

  • Pilon fracture (a severe ankle fracture also known as tibial plafond fracture) with multiple fragments and comminuted tibia fracture
  • Open reduction internal fixation surgery with eight inch long metal plate and screws
  • Four day hospital admission, two weeks home confinement and six weeks of intensive physical therapy
  • Unable to ambulate without walker or cane for three months
  • Second surgery to remove painful hardware one year post-accident

Pilon Fracture Pre-Surgery:

Pilon Fracture Post-Surgery:

As of the time of trial, Mr. Grinberg still experienced pain walking on uneven surfaces and difficulty walking for any length of time. Also, he was no longer able to swim or hike, passions he enjoyed previously.

The defendant argued that plaintiff had made an excellent recovery with virtually no residual limitations, especially in view of the facts that:

  • he’d returned to work full time four months after the accident (albeit as a sedentary scheduler, not as an active project manager able to walk construction sites) and
  • at the time of trial he walked without a limp or any assistance and took no prescription pain medications.

The jury was apparently impressed with the admission of plaintiff’s treating surgeon (Lon Weiner, M.D.) that Mr. Grinberg “made a very good” and “rather exceptional” recovery.

The appellate judges, though, were more impressed with the surgeon’s conclusion that nonetheless there was already post-traumatic arthritis present along with weak and inflamed tendons which conditions, he testified, will likely progress and result in future procedures (such as fusion or tendon surgery).

Inside Information:

  • The orthopedic surgeon who examined plaintiff for the defense (William Kulak, M.D.)  conceded that plaintiff had tendonitis and that he had no reason to doubt Dr. Weiner’s finding of arthritis (though he opined that plaintiff’s arthritic pain may not have been caused by the accident).
  • Before the five day trial, plaintiff would have accepted $495,000 to settle but the highest defense offer was $325,000.
  • Plaintiff’s counsel asked the jury for pain and suffering awards of $1,000,000 for the past plus $1,500,000 for the future; on appeal, he urged the court to upwardly modify the pain and suffering awards to $600,000 for the past and $450,000 for the future. Defense counsel urged the court to affirm the jury awards of $75,000 for the past and $35,000 for the future.
  • There was neither a lost income claim nor a future medical expense claim. The parties agreed that past medical expenses totaled $19,526.56.
  • In accordance with the liability split determined by the jury, plaintiff is to receive 45% of the damages award.