On May 2, 2007, fifty-nine year old Mary Lou Knoch was about to cross the roadway in front of 625 Fulton Street in downtown Brooklyn when she tripped and fell from a city sidewalk into the roadway.
Ms. Knoch sued the City of New York claiming that the sidewalk was defective, the city had prior written notice of the defect and it had failed to properly repair the condition. A Kings County jury agreed with the plaintiff to an extent – it determined that the city was 60% at fault for the accident (and that plaintiff bore 40% of the fault).
On December 14, 2012, the jurors awarded plaintiff pain and suffering damages in the sum of $200,000 ($150,000 past – 4 1/2 years, $50,000 future – 20 years).
On May 20, 2013, the trial judge issued a decision denying plaintiff”s post-trial motion in which plaintiff argued that the $50,000 award for future pain and suffering damages was inadequate and in Knoch v. City of New York (2d Dept. 2016) the appellate court affirmed the judge’s decision.
Here are the injury details (about which the appellate court made no mention).
- displaced fracture of the greater tuberosity of the left humerus (plaintiff’s dominant arm)
- partial rotator cuff tear and possible labral tear
- post-traumatic adhesive capsulitis (“frozen shoulder”) leaving plaintiff with very limited range of motion, daily and continuous pain, needing help to get dressed, unable to lift her grandchildren, iron or resume her favorite recreational activity (fly fishing)
Ms. Knoch was taken by ambulance to the local hospital and treated with a sling and painkillers. Two days later, she saw an orthopedic surgeon who prescribed physical therapy (which she started two months later) and later recommended surgery. Ms. Knoch, a 36 year IRS employee (a facilities manager, in charge of three buildings) who was on the job at the time of her fall, returned to work a month or so after the accident while continuing physical therapy until December 2007 (when she started with home exercises).
The defense argued that the jury award for future damages was adequate because plaintiff failed to mitigate her own damages in that (a) she discontinued physical therapy on her own (in part because she did not want to get home late from work and did not want to go during the work day – “there was no time to schedule in physical therapy”) and (b) she failed to undergo the surgery her doctor recommended.
The surgery – an arthroscopic procedure known as lysis of adhesions with manipulation under anesthesia – would have involved cuttting the scar tissue and adhesions to allow more shoulder movement.
Plaintiff argued that the mitigation charge was unwarranted. As to physical therapy, she pointed out that she continued with home exercises and as to surgery, she testified she was anxious to get approval from her workers compensation carrier but she was turned down and could not afford it.
The jury also awarded plaintiff future medical expenses in the sum of $31,000.
- $18,000 – for the cost of surgery, plus
- $10,000 – for one year of post-surgery physical therapy, plus
- $3,000 – for prescription medications.
Plaintiff argued on appeal that the jury’s award of these future medical expenses made it clear that it was inconsistent and inadequate to award only $50,000 for 20 years of future pain and suffering.
Defendant, though, argued that:
- it was not at all clear that the workers compensation carrier denied requests to approve the surgery (proof was essentially the oral testimony of plaintiff and some notes from a treating doctor who was not called to testify),
- there was insufficient proof that plaintiff could not afford to pay for the surgery herself, and,
- the jury must have correctly concluded that plaintiff had already improved somewhat by the time of trial and that surgery would also improve her condition.
- The defendant repeatedly failed to produce evidence during the pre-trial discovery phase of this lawsuit that it was ordered to produce and the trial judge issued a $2,500 monetary sanction that was upheld on appeal.
- Plaintiff admitted on cross-examination that one of the reasons she stopped physical therapy was that if she went during work hours the time she used would not count towards her pension. She knew then that she’d be retiring soon and in fact did so in 2011 shortly before trial.
- The defense orthopedic surgery expert, Alan J. Zimmerman, M.D., testified that plaintiff’s fracture healed well, she did not develop adhesive capsulitis nor did she sustain a rotator cuff tear and she did not need surgery. The plaintiff’s expert, Laith Jazwari M.D., testified to the contrary and opined that plaintiff had a permanent injury with a 75% loss of use of her shoulder and a poor prognosis because she didn’t have the surgery.