On March 10, 2008, Cassandra Grace was heading toward the turnstiles at the Third Avenue-149th Street subway station in the Bronx. After descending a flight of stairs, her foot was caught by a depression in cracked tiles on the floor causing her to trip and fall.
Ms. Grace, then a 46 year old dance instructor, was taken by ambulance to the local hospital where she was treated for complaints of ankle, back and knee pain. She was released that day but her pain persisted and she sued the transit authority claiming that it failed to maintain the station in a reasonably safe condition.
On August 3, 2012, the Bronx jury determined that the defendant was fully at fault and awarded pain and suffering damages in the sum of $170,000 ($20,000 past – 4 1/2 years, $150,000 future – 31 years). In addition, the jury awarded loss of enjoyment of life damages in the sum of $45,000 ($20,000 past, $25,000 future).
The defendant appealed, claiming that (a) the liability verdict should be vacated and (b) the damage awards were excessive, in particular the $45,000 for past and future loss of enjoyment of life.
Both the liability and damages verdicts have been affirmed in Grace v. New York City Transit Authority (1st Dept. 2014).
Defendant correctly argued that loss of enjoyment of life is not a separate element of damages deserving a distinct award but is, instead, only a factor to be considered by a jury in assessing damages for pain and suffering. As the court noted in this case, though, the defendant lost its right to contest this error on appeal because it failed at trial to object to the proposed verdict sheet and thereafter failed again to object when the trial judge charged the jury.
Here are the details as to plaintiff’s injuries, none of which are mentioned in the court’s decision:
- Ankle – completely torn anterior tibiofibular ligament requiring arthroscopic surgery on 10/17/08 in which the ligament ends were sewn together and several pieces of floating cartilage were removed; non-weight bearing for four weeks, CAM boot for another four weeks and air stirrups for eight months; permanent pain and range of motion deficits
- Back – herniated disc at L3-4 with permanent pain and range of motion deficits
- Knee – torn cartilage with permanent pain and range of motion deficits
- Unable to return to work as a dancer-instructor (though about a year before trial she was able to find another job in the dance field but only instructing, not dancing in any significant manner)
Ms. Grace underwent about 12 months of physical therapy, faces a lifetime of thrice annual epidural steroid injections in her spine and, although no further surgery is yet indicated, her expert physiatrist testified that her prognosis is poor regarding all of her injuries.
The defendant contended that Ms. Grace did not need ankle surgery and in any event it had healed well, any pain in her back was from pre-existing degenerative disc disease and her knee injury was minor if anything at all.
- Before trial, plaintiff’s settlement demand was $375,000 against an offer of $75,000.
- In closing arguments, plaintiff’s counsel asked the jury to award $950,000 for plaintiff’s non-economic damages. Defense counsel urged a finding of no liability but, alternatively, suggested no more than $70,000 for the past and nothing at all for the future.
- Shortly before trial, it came to light that the defendant’s orthopedic surgery expert had treated the plaintiff twice after the accident – in May and June of 2008. Both the doctor and the plaintiff had been unaware of that fact when, in May 2009, plaintiff was examined by the doctor as defendant’s expert.
- Plaintiff was also awarded damages for (a) past loss of earnings in the sum of $136,000 and (b) medical expenses in the sum of $171,000 ($36,000 past, $135,000 future). The parties agreed to reduce the loss of earnings award by $71,000 due to disability payments plaintiff received before trial.