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Knee Injury Damages Verdict Substantially Increased on Appeal

Posted in Knee Injuries

On October 6, 2009, Marcia Saft was walking home after dinner with her husband at a local restaurant in Manhattan. She tripped and fell on the sidewalk in front of 229 East 81st Street where Con Edison had placed temporary electric cable encased in a shunt board running from the street to the building.

An illustration from the utility company’s web site depicting a yellow shunt board (the shunt in this case was black with an orange stripe):

Ms. Saft’s foot got caught in the edge of the shunt and she fell forward to the ground onto her knee sustaining an injury requiring immediate ambulance transport to the hospital and surgery the next day.

In the ensuing lawsuit, plaintiff claimed that Con Ed was negligent because the presence of the shunt without any warnings made the sidewalk unreasonably dangerous at night. The defendant contended that the shunt was open and obvious, there was ambient light, no need for cones or a barricade and that Ms. Saft was not paying attention.

On May 16, 2013, the Manhattan jury determined that each party was 50% liable for the accident.

The jury then awarded the 64 year old plaintiff pre-apportionment pain and suffering damages in the sum of $50,000 ($34,000 past – 3 1/2 years, $16,000 future – 15 years). Plaintiff appealed contending that the damages award was inadequate.

In Saft v. Consolidated Edison Co. of N.Y., Inc. (1st Dept. 2015), the pre-apportionment damages award has been increased to $520,000 ($370,000 past, $150,000 future).

The court’s opinion omits any mention at all as to the injuries sustained. Here are the details:

  • comminuted patella fracture with tears of the retinaculum
  • open reduction internal fixation surgery –  with excision of shattered distal portion of the patella and tendon reattachment through holes drilled in the patella
  • three day hospital admission
  • casted for six weeks, about one month in a wheelchair and another month or so using a walker
  • permanent pain and inability to resume nightly two mile walks with her husband (an activity they enjoyed almost every day for decades before)

Inside Information:

  • The only medical witness to testify was an orthopedic surgeon retained by plaintiff. He reviewed her medical records but was not asked to examine her.
  • The first question defense counsel asked plaintiff’s expert on cross-examination was: “Nasty injury?” After the affirmative answer, plaintiff’s counsel repeated the word “nasty” several times in his closing argument when referring to Ms. Saft’s injury.
  • Defense counsel suggested on appeal that the pre-apportionment damages should be increased to $100,000.
  • Plaintiff’s counsel asked the jury to award the exact figures adopted by the appellate court ($370,000 for past pain and suffering plus $150,000 for the future).