On November 16, 2011, Lush Dacaj slipped on concrete stairs going down to the subway at Rockefeller Center at Sixth Avenue and West 47th Street in Manhattan.

Dacaj slipped on the tread of the third-highest step and fell to the bottom of the stairs sustaining serious neck injuries.

In his ensuing lawsuit against the subway station operator, the New York City Transit Authority, Dacaj (74 years old at trial) claimed that he slipped and fell because the stairway tread was loose and downwardly sloped. The New York County jury agreed and apportioned liability 86% to the defendant and 14% to plaintiff.

The jury then awarded plaintiff pain and suffering damages in the sum of $2,200,000 ($1,200,000 past – four and a half years, $1,000,000 future – 10 years). They also awarded damages for  lost earnings in the sum of $490,000 ($240,000 past, $250,000 future – five and a half  years) and medical expenses in the sum of $605,582 ($350,000 past, $255,582 future – 10 years).

Defendant’s post-trial motion to set aside the verdict and order a new trial on liability and damages was denied. On appeal, though, in Dacaj v. New York City Transit Authority  (1st Dept. 2019), the pain and suffering award was found to be excessive and it was reduced to $1,675,000 ($1,000,000 past, $675,000 future); the other damages awards were affirmed.

Here are the injury details:

  • Transported by ambulance to the local hospital where he complained of neck pain and was diagnosed with a traumatic dislocation of the C5-6 vertebrae in his spine, known as a jumped facet; treated with cervical collar and pain medication and advised to follow-up

  • Treatment five days later with spine surgeon complaining of constant severe neck pain; diagnosed with fractured lamina at C5-6 and herniated discs at C4-5; cervical collar continued and advised surgery needed
  • Surgeries on 12/13/11 and 12/14/11: posterior and anterior cervical fusion surgeries at C4-5-6 with metal pates and 12 screws inserted; inpatient for 12 days
  • Physical therapy for two years
  • Continuing and constant shooting and stabbing neck pain leaving plaintiff unable to return to work as a janitor, perform home maintenance chores or care for his disabled wife

The defendant did not challenge the liability verdict on appeal, arguing instead that erroneous trial court rulings led to excessive damages awards not only as to pain and suffering but also as to lost earnings and medical expenses.

As to lost earnings, defendant appealed only with respect to the future award arguing that because plaintiff was 74 years old at the time of trial the jury should not have been charged he had a work-life expectancy of 2.2 years and that an award covering 5.5 years in the future was unreasonable. Plaintiff testified, though, that he had intended to work until he was 79 years old so that he would then be entitled to a job-related pension.

As to medical expenses, the future award included costs that plaintiff’s surgeon testified would be incurred such as annual orthopedic visits, diagnostic studies (x-rays, MRIs and EMG studies), epidural injections and physical therapy ($128,703 for the duration of plaintiff’s life). The jury’s award did not include the $80,000 cost of future surgery.

Defendant did not produce either its orthopedic or radiologist experts despite giving notice that these witnesses would be presented. Plaintiff requested and was given a missing witness charge as to these doctors which led to negative inferences that the defendant argued on appeal unfairly prejudiced the jury and resulted in all of the excessive damages awards. The appellate court rejected this argument.

Inside Information:

  • Plaintiff’s 16 year old grandson testified about plaintiff’s physical activities before the accident and his limitations thereafter. They saw each other every other day for the four years prior to trial and every weekend before that.
  • Plaintiff moved to the United States from Kosova when he was 55 years old and became a citizen. His primary language is Albanian.