On May 18, 2007, at about 10:30 p.m., Oliver Tookes, a 57 year old off-duty gardener employed by the Port Authority of New York and New Jersey, returned to his workplace at the Bayonne Bridge tollhouse building in Staten Island where, the day before, he’d inadvertently left his car keys. Unfortunately neither he nor anyone else there that night had keys to the building but he and a supervisor could see the keys on a desk through an open window and they thought they could get the keys by hooking them onto a pole they inserted through the window.
At one point, standing outside the building on a metal grate covering a basement access pit, they had the keys hooked onto the pole but the keys fell off; at another point shortly thereafter, the grate collapsed and Tookes plunged nine feet below to a concrete floor causing serious fractures of his left ankle and left wrist.
The actual area where Tookes fell, from a trial exhibit in the ensuing lawsuit:
Claiming that the grates were not in a reasonably safe condition, Tookes sued the Port Authority in the United States District Court for the Eastern District of New York. Because Tookes was a Pennsylvania resident, so-called diversity jurisdiction was applicable allowing him to sue in federal court. The litigation resulted in two trials plus an appeal.
In the first trial, on December 10, 2010, in Tookes v. Port Authority of New York and New Jersey (E.D.N.Y. No. 08 CV 1060), the jurors found that the Port Authority was negligent in that the grates were not reasonably safe (there was testimony from an expert metallurgist who concluded that they were both misaligned and corroded) and they awarded Mr. Tookes pain and suffering damages in the sum of $450,000 ($50,000 past – 3.5 years, $400,000 future – 18 years). The jury also awarded $300,000 for his loss of earnings.
In a post-trial motion, plaintiff argued that $50,000 for past pain and suffering was inadequate. The trial judge agreed and issued a decision on August 10, 2011 ordering a new trial limited to the issue of past pain and suffering damages unless the defendant stipulated to increase that award to $500,000.
The defendant refused to stipulate and therefore a second trial was held. On January 24, 2012, the new jury awarded $600,000 for past pain and suffering damages.
The injuries Mr. Tookes suffered are described well in the post-trial decision and summarized as follows:
- Left ankle Grade 3 open bimalleolar intra-articular fracture with torn ligaments requiring four surgeries: (1) open reduction internal fixation the day after the accident with placement of four screws and a long pin, (2) cleaning and washing out wound infection a week later, (3) saphenous nerve surgery three months later to bury the nerve’s torn end (previously causing electric shock type shooting pain) inside the bone and tissue to get its ends away from everything), and, (4) ankle fusion surgery two years after the accident (see actual trial exhibit below).
- Left wrist distal radius intra-articular fracture treated with an external fixator in place for several weeks.
Illustration Courtesy of Anatomical Justice, LLC
Tookes spent about a week in the hospital initially, then was transferred to a nursing home for seven weeks of rehabilitation. At trial, his treating orthopedic surgeon Nadubeethi Jayaram, M.D. testified that plaintiff’s ability to walk had decreased so much that the ankle fusion surgery was needed to restore his ability to walk again without significant pain. The ankle bones were fused together, using a bone graft from the hip, so that there wouldn’t be any more pain producing bone rubbing on bone.
Unfortunately, Mr. Tookes was left with a permanent limp from having no ankle joint and new pain developed below the level of the fusion that may require even more surgery. The wrist, essentially healed within months, remains with some residual stiffness.
The first jury determined that Mr. Tookes was 40% comparatively negligent for the accident. On a post-trial motion, the plaintiff argued that there couldn’t be any comparative negligence since the grate collapse was not foreseeable to a layman, but the trial judge refused to disturb the jury’s finding.
Plaintiff appealed the comparative negligence finding and on October 18, 2013, the United States Court of Appeals for the Second Circuit reversed and held there was no comparative negligence at all. The appellate judges stated, in part, that “the evidence did not furnish a reasonable basis for a finding of negligence on Tookes’ part that contributed to his accident.” As a result, Tookes became entitled to 100% of the damages awarded, not just 60%.
The appellate court decision also upheld the defense position that the $300,000 loss of earnings award should be offset by expected Social Security disability benefits in the sum of $93,000.
- Tookes returned to work on light duty for eleven months before his ankle hurt so much that he required fusion surgery following which he was retired from his job on disability.
- Just before the case was submitted to the jury for the first time, the trial judge explored the possibility of a settlement. Plaintiff’s demand had been $1,400,000 but the defense told the judge her client would not make any offer at all against such a high demand. The judge told defense counsel: “You may pay a dear price for lack of sound judgment on behalf of your client.” Furthermore, the judge said that the plaintiff’s demand was “not unreasonable,” he suggested that there should be a counteroffer and, finally, he said: “I’m telling you your client has just stonewalled this case. They’re entitled to put their neck in the noose.”
- Plaintiff’s lawyer, Eric Turkewitz, was not only victorious in just about every aspect of this case but also his $1,400,000 pre-trial settlement demand was prescient – the amount ultimately awarded and paid was $1,455,000 ($1,300,000 in damages less the $93,000 disability benefits offset discussed above plus $248,000 representing interest on the damage awards at 9% per annum from the date of the first verdict in 2010.