On May 8, 2013, at about 7:30 p.m., Aminatah Kromah, a 32 year old hairdresser, was descending the interior stairs of a 50 unit apartment building at 2265 Davidson Avenue in the Bronx when she slipped and fell down five steps and sustained massive ankle and lower extremity injuries.
In her ensuing lawsuit against the building owner and management company, Ms. Kromah claimed that the staircase was defective and dangerous because of a crack in one of the steps and inadequate lighting.
The jury agreed that the defendants were fully liable for the accident and awarded plaintiff pain and suffering damages in the sum of $9,000,000 ($4,500,000 past – four years, $4,500,000 future – 45 years).
Defendants made a post-trial motion arguing that the awards were excessive. The trial judge agreed with the defense that the $4,500,000 past pain and suffering award was excessive and he ordered it reduced to $1,600,000. The judge refused, though, to disturb the $4,500,000 future pain and suffering award finding that it was reasonable.
The reduced total pain and suffering award of $6,100,000 and the liability finding were affirmed on appeal in Kromah v. 22655 Davidson Realty LLC (1st Dept. 2019).
Here are the injury details:
- ambulance transport to the local hospital with a one week admission
- diagnosed with an open trimalleolar ankle fracture dislocation with an obliterated fibula, completely torn and destroyed deltoid ligaments and substantial nerve damage
- surgery #1 (the day after the accident) – open reduction internal fixation with plate and screws
- surgery #2 (one year later) – arthroscopic synovectomy of talonavicular joint, removal of loose cartilage, lysis of adhesions of the ankle joint
- extensive physical therapy, many steroid injections and continuing narcotic pain medication
- post-traumatic arthritis and reflex sympathetic dystrophy (“RSD”) with extreme and constant abnormal sensitivity, burning neuropathic pain and swelling
- unable to walk without cane
- permanent total disability from prior profession as hairdresser due to difficulty standing for prolonged periods, walking greater than 2-3 blocks and walking up or down stairs
- poor prognosis with expected accelerated degeneration of injuries, decrease of extremely limited range of motion and worsening of arthritis
The jury also awarded and the appellate court affirmed damages for past and future loss of earnings in the sum of $951,000.
The jury’s award for future medical expenses in the sum of $2,547,000 (the largest component of which was $1,625,000 for medications over 45 years) was reduced by $294,00 which was the sum awarded for radio frequency injections. The court noted that plaintiff had not had such treatment and there was no evidence it would provide relief and become necessary. Other items that were allowed included $141,000 for pain management visits and $305,000 for spinal cord stimulator implantation).
Plaintiff had three treating medical experts testify for her – an orthopedic surgeon, a pain management physician and a physical therapist. The doctors both concluded that plaintiff was suffering from significant RSD. The defense medical experts were an orthopedic surgeon and an internist-rheumatologist. The surgeon conceded that plaintiff had sustained a very serious ankle injury and was suffering from post-traumatic arthritis that may well lead to the need for ankle fusion surgery. He offered no opinion as to RSD. The internist-rheumatologist, though, testified at length on the question of whether plaintiff had RSD. Initially, he opined that plaintiff was not suffering from RSD but on cross-examination, when presented with medical records he hadn’t seen before, he admitted that plaintiff’s symptoms were “consistent” with a diagnosis of RSD (though he would still not agree that plaintiff suffered from RSD).
- This was a hard-fought trial and appeal, both as to liability and damages. There were 13 witnesses (10 for the plaintiff, three for the defendants). The result – $6,100,000 for pain and suffering affirmed on appeal – appears to be a record high for the injuries involved and to be attributable in large part to outstanding advocacy and trial preparation by plaintiff’s lawyer Marc Freund of Lipsig, Shapey, Manus & Moverman.