On October 24, 2008 Robert Loja was working for a landscaping firm in Sleepy Hollow. Just after parking his employer’s truck on Benedict Avenue and unloading his lawn mowing equipment from his truck’s trailer, Loja was struck by a car driven by a young woman on her way to work. His legs were crushed between the car and his trailer.
When he woke up in a hospital two days later, the 35 year old Loja learned that his left leg had been amputated above the knee.
In the ensuing lawsuit, the driver contended that she was not at fault because there was a blinding sun glare and the roadway was improperly and unsafely blocked off by plaintiff and his employer.
The Westchester jury found the driver only 10% at fault while charging plaintiff with 30% of the fault and the landscaping company with 60%.
On January 27, 2012, the jurors awarded pain and suffering damages in the sum of $5,500,000 ($2,500,000 past – three years, $3,000,000 future – 18 years).
Plaintiff was also awarded $1,000,000 for future loss of earnings (18 years) and his 25 year old wife was awarded $1,000,000 for her loss of consortium claim ($500,000 past – three years, $500,000 future – 18 years)
Appeals were pursued by both the defendant and the landscaping company (in the case as a third-party defendant because plaintiff was barred under the Workers Compensation Law from suing his employer). Defendant argued that the damages awards were excessive whereas the third-party defendant argued only that the liability verdict was against the weight of the evidence and that evidentiary errors required a new trial.
In Loja v. Lavelle (2d Dept. 2015), the appellate court affirmed all of the damages awards but shifted the liability apportionment as follows: 50% to defendant, 10% to plaintiff and 40% to third-party defendant.
The court decision mentions that plaintiff’s legs were pinned by the car underneath the trailer and that one of his legs was amputated as a result. Here are additional injury details:
- left leg mangled crush injury, essentially a traumatic amputation
- surgical removal of six inches of the lower left femur, i.e., an above the knee complete amputation
- additional surgeries (a) to wash out the stump, remove ischemic skin and insert a vacuum assisted closure dressing for wound healing, (b) to replace dressings and insert a permanent inferior vena cava filter in the abdomen to prevent blood clots and (c) to graft skin from plaintiff’s hip to his left leg stump
- right leg – severe instability of knee joint with compartment syndrome requiring emergency external fixation and fasciotomy
- right ankle – tears of the anterior talofibular, calcaneofibular and other ligaments
- back – herniated disc at L5-S1 with radiculopathy
- post-traumatic stress disorder and major depression with guarded prognosis; needs psychotherapy and medication
- hospitalization for one month at Westchester Medical Center and then at its related Taylor Institute for Rehabilitation for another month
- outpatient rehabilitation for three months at three more hospitals
- continuing phantom pain in left leg (requiring lifetime pain medication) , ill-fitting prosthesis (with several replacements needed over the years), use of cane to ambulate
- unable to bend, lift, twist, rotate or do excessive standing or sitting
- continuing need for electrical stimulation and brace on right ankle
- needs total knee replacement within 5-10 years
- unable to return to work
- By stipulation, the parties agreed that plaintiff’s damages included $98,000 for past loss of earnings and $178,318 for past medical expenses. These amounts were subject to a lien by the workers compensation carrier.
- A settlement was discussed in open court during the trial. Defense counsel indicated that his client would pay $250,000 and that the workers compensation carrier would pay $750,000 and waive its lien of about $250,000. After a hearing in which the potential settlement was explained, Mr. Loja declined to settle.
- Due to (a) the fact that the driver had very limited insurance coverage and (b) the intricacies of CPLR Article 16 (regarding joint liability) and the Workers Compensation Law (which prohibits employees from suing directly their employers in work-related accidents), it appears Mr. Loja’s actual financial recovery in this lawsuit will be much less than what was offered.
- In his closing argument, plaintiff’s attorney asked the jury to award pain and suffering damages in the sum of $7,475,000.