On August 16, 2006, Nancy Cruz tripped and fell due to a defect in a rubber playground mat at a picnic in the Bronx. Ms. Cruz, then 49 years old, was attending a cookout with her five-year-old grandson when her foot became caught in a worn-out hole in the mat causing her to fall forward and strike her right (dominant) elbow on the ground.
In her ensuing lawsuit, the jury found that the playground owner and picnic sponsor – Bronx Lebanon Hospital Center – was negligent in failing to maintain the area in a reasonably safe condition and that its negligence caused Ms. Cruz’s injuries. Plaintiff was found to be free of any comparative negligence.
On September 7, 2012, the Bronx County jurors awarded plaintiff pain and suffering damages in the sum of $570,000 ($300,000 past – six years, $270,000 future – 27 years).
Following a post-trial motion by the defendant, the jury’s findings as to liability were upheld but the trial judge issued a decision on May 10, 2013 in which he agreed with the defense that the damages awards were excessive and he ordered a reduction to $200,000 ($140,000 past, $60,000 future).
In Cruz v. Bronx Lebanon Hospital Center (1st Dept. 2015), the liability verdict was affirmed and the jury’s $570,000 pain and suffering award was reinstated.
As set forth in the appellate court decision, plaintiff was taken via ambulance to a hospital where she was diagnosed with an avuslion or “chip fracture” and a dislocation of her right elbow. She was treated by closed reduction, her humerus bone was replaced into the ulna or socket of the elbow, her arm was casted and she was discharged to home.
Here are additional injury details:
- multiple chip fractures still loose and floating around in plaintiff’s elbow inflicting pain that is permanent
- four weeks in a cast, followed by four more weeks in a brace
- physical therapy for two months 2-3 times a week
- pain management treatment for almost two years including narcotic pain medication
- loss of grip strength, range of motion and sensation resulting in inability to carry heavy shopping bags or her grandchildren and difficulty mopping and cleaning at home
- In reducing the future pain and suffering award to $60,000, the trial judge rejected the jury’s finding that plaintiff would endure pain and suffering for the entirety of her 27 year life expectancy. He noted that there was evidence plaintiff had a host of pre-existing significant medical problems (including chronic obstructive pulmonary disease, diabetes and high blood pressure), she smoked cigarettes for decades and continued to do so and had a history of suicidal ideation and dependence upon cocaine and alcohol. He reduced her future period of pain and suffering to 13 years stating: “If the jurors believed that plaintiff had a reasonable possibility of surviving even an additional fifteen years, they must have been attending a different trial.”
- Plaintiff’s settlement demand had been $150,000 against which the defendant made no offer. After the verdict (but before he reduced the award), the trial judge indicated that awarding future damages for a 27 year period troubled him but so did the fact that the defense made no settlement offer. He found that “unreasonable” especially because there could have been “a very reasonable settlement in this case and that possibility was foregone because no money whatsoever was offered.”
- In closing arguments, plaintiff’s attorney asked the jury to award pain and suffering damages in the exact amounts they did – $300,000 for the past and $270,000 for the future.
- There was no loss of earnings claim as plaintiff had been disabled for 30 years and was unemployed because of her medical problems mentioned above.
UPDATE: On March 24, 2016, the Court of Appeals affirmed the intermediate appellate court’s finding that legally sufficient evidence supported the jury’s verdict that defendant had constructive notice of the defect.