On November 4, 2006, at about 9:30 a.m., Yvette Martinez stepped out of a city bus at 163rd Street and Third Avenue in the Bronx. As she moved her left foot from the last step down to the street below, she stepped into a pothole, fell and injured her ankle.

Ms. Martinez, then 38 years old, had taken the same bus route for many years and on all prior occasions, the bus, when stopped, had been lined up with the sidewalk so that she had been able to step down from the bus door directly onto the sidewalk. On this day, though, the bus pulled into the bus stop at an angle in a position where the pothole was next to and directly below the bus’s rear exit.

In her ensuing lawsuit, Martinez claimed that her accident occurred because the bus driver failed to provide her with a reasonably safe place to exit the bus and the Bronx jury agreed and awarded $1,800,000 for her pain and suffering damages ($300,000 past – 10 years, $1,500,000 future – 30 years).

In Martinez v. Metropolitan Transit Authority (1st Dept. 2018), the appellate court affirmed the full liability verdict against the transit authority but agreed with the defense that the pain and suffering award was excessive and ordered a reduction to $1,200,000 ($300,000 past, $900,000 future).

Here are the injury details:

• Trimalleolar left ankle fracture dislocation
• Open reduction internal fixation surgery with insertion of an eight-hole semitubular plate with eight screws in the lateral malleolus and a cannulated lag screw in the medial malleolus
• Casted for eight weeks, physical therapy thereafter for three months
• Unable to return to work as administrative assistant for six months
• Continuing and constant pain, limp and disabilities including unable to take her children to park to dance and play, cannot ride a bike, no longer stable on feet, cannot perform housework
• Traumatic arthropathy – narrowed joint space with calcification within (meaning that pieces of cartilage broke off and became calcified)
• Needs future surgery to remove hardware and clean ankle joint

Plaintiff’s treating podiatrist testified that she might require even more surgery after the hardware removal due to continuing joint deterioration – a total ankle joint replacement or an ankle fusion. Defendants’ expert orthopedic surgeon testified that her fractures had completely healed and she did not require further treatment.

Inside Information:

• Plaintiff’s mother had just died and, at the time of the accident, plaintiff was on her way to her mother’s nursing home to pick out clothes for her mother’s wake.
• Plaintiff first saw her podiatrist in August 2014 upon the recommendation of her lawyers. By that time, she had not sought any medical treatment for her ankle for seven years.