Antoinette Harrison, a 22 year old recent immigrant from Liberia, Africa, was on her way to the first day of classes at a nursing school in Brooklyn on January 18, 2005 when she slipped and fell on ice on the platform of an elevated subway station in the Bronx.

She never made it to class that day. She ended up in the hospital due to the ankle injury she sustained from the fall – a spiral comminuted bimalleolar fracture.

In her ensuing lawsuit, Ms. Harrison claimed that the transit authority was negligent because its employees knew about the ice, but failed to clear it away before she fell. A Bronx County jury agreed and rendered a verdict on June 28, 2011 awarding plaintiff pain and suffering damages in the sum of $500,000 ($200,000 past –  6 1/2 years, $300,000 future – 25 years).

On appeal in Harrison v. New York City Transit Authority (1st Dept. 2014), the damages award was affirmed but the liability finding was vacated because the trial judge’s instruction to the jury on the issue of constructive notice was in error.

Here is PJI 2:91, the language that New York trial judges use in fashioning their instructions to juries in slip and fall cases. In this case, the judge had not made it clear that plaintiff had to prove not only the existence of the icy condition but also “that it existed for a sufficient length of time for defendant to have discovered it and taken curative action.”

As set forth in the appellate court decision, despite the reversal on liability grounds, there is no need for a retrial on the issue of damages and, if the new jury finds liability, then the $500,000 award of damages should stand.

Here are some of the injury details in the Harrison case:

  • immediate ambulance transport to the local hospital where x-rays disclosed ankle fractures and torn ligaments
  • delayed surgery until a week later due to swelling
  • ORIF (open reduction internal fixation) surgery with plates and screws implanted
  • three days hospitalization
  • three months of physical therapy
  • pain from the protrusion of one of the implanted screws, resulting in second surgery three years later in which all screws and the plate were removed
  • permanent pain and numbness with loss of range of motion, weakness and swelling
  • unable to exercise or run, unable to wear high heels

Lucy Gonzalez, a 46 year old social worker for the New York City Health and Hospitals Corporation, slipped and injured her ankle entering P.S. 132, a City of New York owned school in Brooklyn, on the blistery cold, snowy and sleeting morning of February 14, 2007.

Ms. Gonzalez had gone to the school to assist a young woman enroll her daughter there. Ms. Gonzalez fell after climbing the steps to the school’s entrance, opening the door and stepping across the threshold. There was no floor mat placed behind the door and she fell because the floor was slippery and wet.

P.S. 132

Like Ms. Harrison in the case discussed above, Gonzalez sustained a bimalleolar ankle fracture. She also sustained a dislocated ankle (subluxation of her talus).

Gonzalez sued the city, the board of education and the school claiming their negligence caused her injuries. On April 14, 2011, a Kings County jury (a) found that the defendants were negligent in failing to keep the vestibule in a reasonably safe condition and (b) awarded plaintiff pain and suffering damages in the sum of $950,000 ($500,000 past – 4 years, $450,000 future – 32  years).

On appeal in Gonzalez v. City of New York (2d Dept. 2013), the damages award was affirmed but the liability finding was vacated because improper testimony had been admitted that was prejudicial to the defense:

  1. a hearsay statement from a security guard to the effect that someone else had fallen in the past and
  2. expert testimony regarding inapplicable national safety standards that plaintiff claimed applied to her case

As set forth in the appellate court decision, the reversal was on liability grounds only – the case was sent back “for a new trial on the issue of liability only.” In effect, the appellate court affirmed the propriety of the damages awards (which were not the subject of an appeal by either side) and, if the new jury finds liability, then the $950,000 award for pain and suffering damages (plus $50,000 for future medical expenses) will stand.

Here are some of the injury details in the Gonzalez case:

  • after transport by ambulance from the scene to the hospital, manual reduction of the fracture that was “exquisitely painful” according to expert testimony, then discharged to home for a week or so of elevation of the leg to reduce swelling
  • open reduction internal fixation surgery on February 23, 2007 (nine days after the accident) with the insertion of a lag plate and seven screws to secure it
  • five months out of work, returning on limited duty using  a cane and confined to desk duty for almost a year
  • second surgery on October 24, 2008 (about 19 months after the fall) to remove the plate and screws because of swelling and discomfort
  • “bad prognosis” with likelihood of intra-articular arthritis and, if so, additional surgery such as an ankle fusion
  • unable to run, play with her kids or wear high heels