On May 13, 2007 Aleyanesh Sebhat boarded the subway train at the Pelham Parkway station in the Bronx. As soon as she did, the train took off suddenly, with a violent jerk that threw her across the subway car and onto the floor where she lay writhing in pain until ambulance personnel took her to the local hospital.
In Ms. Sebhat’s ensuing lawsuit against the transit authority, the Bronx jury (a) determined that a sudden, unusual and violent movement of the train caused her injuries and (b) awarded pain and suffering damages in the sum of $1,500,000 ($1,200,000 past – seven years, $300,000 future – 10 years).
In Sebhat v. MTA N.Y. City Tr. (1st Dept. 2016), the appellate court (a) reversed the liability finding and remanded the case for a new trial on liability due to erroneous evidentiary rulings by the trial judge but (b) affirmed the damages award “which should stand if the [new] jury finds liability on retrial.”
As indicated in the court’s decision, plaintiff, then 62 years old, sustained a hip injury but the court refrained from disclosing more.
Here are the injury details:
- comminuted left intertrochanteric hip fracture with subtrochanteric extension
- surgery two days later: intramedullary fixation of left hip fracture with 340 mm fixation nail placed into the length of her femur, locked in place at the top and bottom with interlocking screws
- one month inpatient at hospital and rehabilitation center
- two weeks home Visiting Nurse Service
- antalgic gait requiring a cane to walk inside and a roaming walker outside
- intractable, throbbing pain (daily but not continuous) and significant loss of range of motion, both of which her treating surgeon testified are permanent and will get worse over time (the defense conceded “there is permanency regarding the left hip”)
Prior to the accident, plaintiff was active, in good health and independent. She lived with her adult daughter and was the one who did the shopping, cooking and cleaning (none of which she can do any longer) and walked all over – to parks, the zoo and church (now she can walk no more than three blocks at a time). She had just finished a course to become certified as a babysitter and was looking for work in that field when she was injured.
The defense challenged the future pain and suffering award (but not the past). The jury’s original verdict sheet returned to the judge after deliberations awarded $1,200,000 for past pain and suffering but “none” for the future. At plaintiff’s request, over defendant’s objection, the judge re-charged the jury that it should go back to the jury room and reconsider its award for future pain and suffering in view of the fact that it had been “pretty much established, without doubt, that [plaintiff] is going to have a permanent – that these injuries she sustained are going to be permanent”:
“if you believe … that she is going to live with this for the remainder of hr life … consider whether in fact she should be awarded [future pain and suffering damages].”
After the re-charge, the jury awarded $300,000 for future pain and suffering damages. The defendant argued on appeal that the jury’s initial verdict declining to award anything for future pain and suffering should be reinstated because the trial judge had substituted his assessment of the witnesses’ credibility as to permanency and continuing pain. The appellate judges, though, disagreed stating that an award of zero damages for the future “would have been unwarranted” in view of uncontroverted evidence of permanence. They also rejected defendant’s alternative argument that $300,000 was excessive.
- Ms. Sebhat was born in Ethiopia (and testified in her native language, Amharic) where she taught grade school before her husband died at the age of 48 years and she came to the U.S. in 2002 via the diversity immigrant visa program and became a citizen in 2008.
- Plaintiff’s attorney asked the train operator whether defendant’s attorneys had spoken with him “in connection with preparing you to come on the witness stand and testify in this case” and “they spoke with you about giving testimony that this train could not have a sudden top, just couldn’t and wouldn’t happen ….” This question violated the attorney-client privilege, suggested to the jury that the defendant may have coached the witness how to testify and was one of the errors requiring a new trial on liability.