On August 8, 2010, Juana Santana was grocery shopping near the vegetable table at Western Beef Supermarket in Staten Island when she slipped, fell and injured her shoulder.
Claiming that her fall and injuries were due to the market’s negligence in allowing its employees to manually spray the vegetables with water which then dripped onto the floor, the retired 68 year old Ms. Santana sued.
Defendant offered only one witness during the liability phase of the trial – a manager who was not working at the market at the time of the accident. The witness was precluded from testifying. Without any testimony to rebut plaintiff’s version of the accident, the trial judge directed a verdict as to full liability on the part of the defendant.
In the damages phase of the trial, the jury returned a verdict in plaintiff’s favor for pain and suffering in the sum of $20,000 (all past – four years). Plaintiff’s attorney immediately requested that the trial judge set aside the verdict because of the failure to award any damages at all for future pain and suffering. The judge granted the application. An appeal followed.
In Santana v. Western Beef Retail, Inc., (2d Dept. 2015), the appellate court affirmed the trial judge’s order setting aside the verdict because the failure to award any damages for future pain and suffering was inconsistent with the evidence that plaintiff’s shoulder injury was permanent.
Here are the injury details:
- Full thickness one centimeter tear of rotator cuff
- Torn anterior labrum with displacement
- Arthroscopic surgery on 12/29/10 (a) to debride the rotator cuff and (b) to repair the labrum with stitches and an anchor
- Permanent restricted range of motion, pain, tenderness and limitations
The defendant’s expert orthopedic surgeon opined that plaintiff “healed fairly well” and that whatever restrictions, pain and limitations she had were not severe. He did, though, concede that plaintiff’s injuries are permanent.
Plaintiff testified that as a result of her injury she feels like her “shoulder is going to fall off” and that she cannot clean her house, get dressed without assistance, hug her granddaughter or travel much outside her home all due to pain.
- Plaintiff’s attorney asked the jury to award $300,000 for past and future (18 1/2 years) pain and suffering. The defendant has now agreed to pay $160,000 in full settlement after plaintiff, holding firm to a settlement demand of $160,000, rejected its offers during trial in the sum of $60,000 and then $100,000.
- After the verdict, defense counsel spoke with the jurors and said that some indicated they believed plaintiff was not credible and that this informed their decision as to the (minimal) damages award.
- The jurors saw two videos – one was a store video that depicted plaintiff slipping and falling, the other was taken by plaintiff’s daughter showing plaintiff with water on the floor.