On April 18, 2008 Pamela Blechman was on her way to a meeting for her employer, a charitable fund, when she boarded a crowded uptown subway train at the 14th Street-Union Square station in Manhattan. After she stepped from the platform into the subway car, Ms. Blechman was jostled backwards and fell into a foot-wide gap between the edge of the station platform and the door sill of the subway car.
She fell into the gap up to her armpits with one leg in the gap and the other still in the train. Before the train pulled away from the station, she was pulled out but she’d injured her ankle and an ambulance came and took her to a nearby hospital.
In her ensuing lawsuit, Ms. Blechman claimed that the transit authority was negligent and caused her injuries because the train stopped 10-15 feet past its usual spot, creating a dangerous gap that was two times larger than the normal six-inch gap.
The defendant asserted that it performs a governmental function and, accordingly, its decisions concerning acceptable gaps between subway cars and platforms should be entitled to qualified immunity. On March 19, 2013, a decision was issued striking the qualified immunity defense and ordering that the defendant was not permitted to raise it at trial.
On October 17, 2013, a Manhattan jury found that the transit authority was liable for the accident and awarded the 40 year old Ms. Blechman pain and suffering damages in the sum of $350,000 (all past – 5 1/2 years).
In Blechman v. New York City Transit Authority (1st Dept. 2015), both the liability and damages verdicts have been affirmed. As set forth in the decision, plaintiff sustained a comminuted ankle fracture that required two surgeries.
Here are the injury details:
- displaced, comminuted oblique fracture through the lateral malleolus
- surgery #1 on 5/2/08: open reduction with internal fixation (“ORIF”) with a six-hole plate and six screws including an interfragmentary screw (right through the bone)
- following the first surgery, plaintiff was casted, then used a walking boot, followed by physical therapy and then home exercises
- surgery #2 on 1/26/09: removal of the implanted hardware and excision of an exostosis (a fragment of bone protruding internally)
The defendant argued that the jury’s $350,000 pain and suffering award was excessive because:
- plaintiff’s surgeries were done on an outpatient basis,
- her “course and recovery were as smooth as possible” and
- four months after the accident she went on vacation to Bali where plaintiff hiked to the top of a volcano
Plaintiff was awarded nothing at all for future pain and suffering apparently because the jurors determined she’d made an excellent recovery, returned to work without restrictions within four months, was both before and after the accident a very active and athletic woman and she did not testify as to any limitation in her daily activities except to the extent that she said she can “not really” run any more. Asked how her hiking differed from before the accident, she replied: “Yes, it was actually a good recovery, so I’m able to do a lot of what I did, but it’s not quite at the same level.” Plaintiff did not challenge this aspect of the award.
- In summation, plaintiff’s counsel recommended that the jury award $300,000 for past pain and suffering and $200,000 for the future. Defense counsel recommended $30,000 ostensibly for past pain and suffering only.
- Plaintiff’s settlement demand had been $425,000 against a $5,000 offer.