Lidy Telsaint was 21 years old on March 21, 2007, having arrived in the U.S. from Haiti just six months earlier in order to rejoin her family here. At 8 a.m. that morning, she was on her way to English language school when she slipped and fell on ice that had formed on the sidewalk just outside her family home’s front door at 550 Dekalb Avenue in Brooklyn. Here is the accident scene:
Ms. Telsaint sustained an ankle fracture and, relying on Section 7-210 of the Administrative Code of the City of New York, she sued the building owner, the City of New York, claiming that the sidewalk was left in a dangerous, icy condition after a snowfall five days earlier.
On April 2, 2012, a Kings County jury agreed with plaintiff finding that the defendant was negligent because:
- the sidewalk where Ms. Telsaint fell was in an unreasonably unsafe condition and
- the ice was in existence for a sufficient period of time before the accident so that a reasonably prudent building owner should have known of it and removed it
The jurors then awarded plaintiff pain and suffering damages in the sum of $2,250,000 ($750,000 past – five years, $1,500,000 future – 44 years).
The city argued in a post-trial motion that there was no basis for liability (and that the damages award was excessive) and the trial judge agreed. He issued a decision finding that there was no valid line of reasoning that could lead to the conclusion that the city had constructive notice of the ice patch that caused plaintiff to fall. Accordingly, the judge set aside the jury verdict and dismissed the lawsuit.
The trial judge did not address the issue of damages but an appellate court has now done so. In Telsaint v. City of New York (2d Dept. 2014), the liability verdict against the defendant has been reinstated in full; however, the damages award has been modified downward to $1,250,000 ($350,000 past, $900,000 future).
There is nothing in the appellate court decision disclosing the injuries sustained by the plaintiff. Here are the injury details:
- trimalleolar displaced and comminuted ankle fracture
- open reduction internal fixation surgery with implantation of a metal plate and nine screws
- transported by car from the scene to Brooklyn Hospital where plaintiff was admitted for five days followed by an additional two days the next month due to an infection requiring intravenous antibiotics
- casted three months, then crutches for three more months
- 12 months of physical therapy
- two permanent keloid scars (one that is almost five inches long)
- continuing, constant pain causing antalgic gait (limp) and an inability to stand or walk for long periods of time
- substantial range of motion deficits, especially external rotation
- need for future surgery to remove painful hardware
The defendant argued that plaintiff made a good recovery and therefore the jury’s pain and suffering awards were excessive, among other reasons, because she finished her schooling and worked in clothing stores and as a home health aide (for which she took and passed a physical examination). Plaintiff countered that she stopped work in one store because of pain from standing too long, the physical had nothing to do with her ankle and her home health aide job had not included any patient lifting or other physically taxing responsibilities.
- In closing arguments, defense counsel told the jurors that if they reach the issue of damages then “plaintiff’s attorney will sit up here and ask you for money. He may ask for large amounts of money. $25,000 -$50,000. He may ask for a lot of money.” In fact, plaintiff’s attorney asked the jury for $750,000 for past pain and suffering plus $1,500,000 for the future – the exact amounts they awarded.
- The trial judge instructed the jury that plaintiff had a life expectancy of 53 years; however, their award for future pain and suffering encompassed only 44 years.
- The six jurors were split 5-1 with the holdout later telling the judge that there was “not enough evidence” because there were “no witnesses that actually saw the incident happen.”
- At the time of trial, plaintiff was enrolled at Medgar Evars College working towards an associate’s degree in biology while working part-time at Macy’s in Brooklyn.
- Plaintiff submitted to a physical examination by an orthopedic surgeon for the defense whose report was exchanged; however, the doctor did not testify and, in the trial judge’s instructions to the jury as to the law in this case, a so-called missing witness charge was given. Jerry Lubliner, M.D. testified for the plaintiff as an expert orthopedic surgeon.