On May 31, 2013, at about 4 p.m., Jose Cabrera was a passenger on a motorcycle being driven by his friend Elido Gonzalez. They had each worked that day as contractors renovating residential apartments and were on their way to pick up checks for their wages when they collided with a New York City Transit Authority bus on Westchester Avenue near 156th Street in the Bronx.
As a result of the impact, the motorcycle was propelled into one of the concrete columns supporting the train tracks elevated above the roadway.
Mr. Cabrera, then 59 years old, sustained several severe injuries and sued Mr. Gonzalez and the transit authority bus driver, claiming that each contributed to the accident. A Bronx jury agreed and apportioned liability 70% to the motorcycle driver and 30% to the bus driver.
The jury also awarded pain and suffering damages in the sum of $4,500,000 ($1,500,000 past – three and a half years, $3,000,000 future – 10 years).
In Cabrera v. New York City Transit Authority (1st Dept. 2019), both the liability and pain and suffering verdicts have been affirmed.
Here are the injury details:
- Hip – comminuted displaced fracture of acetabulum causing it to split into two pieces and requiring irrigation and debridement surgery
- Pelvis – comminuted fracture of superior pubic ramus
- Femur – dislocation requiring closed reduction
- Ulna – mid-shaft fracture requiring open reduction internal fixation surgery with insertion of plate and screws; lacks full supination of forearm
- Scapula – fracture
- Ribs – fractures of five ribs
- Neck – activation of arthritis at C4-7
- Hospitalized from 5/31/13-6/21/13 and from 7/8/13-7/18/13; inpatient rehabilitation treatment until 8/12/13
- Confined to wheelchair for six months
Mr. Cabrera testified that he has constant hip and neck pain, takes narcotic pain medication every day, continues with physical therapy and requires crutches to walk anywhere. He said that he was always out of the house before the accident exercising, walking, socializing and dancing but that since then he’s always in the house, can’t dance and feels like “a piece of a dead person.”
Plaintiff’s orthopedic surgery expert testified that Mr. Cabrera will in the future need both hip replacement and cervical fusion surgeries due to the injuries caused by the accident trauma. Defendant’s expert disagreed; he opined that neither future surgery would be needed and, in any event, if neck surgery is undergone it will be related only to pre-existing degenerative disease and not at all to the accident.
- Although the motorcycle driver Mr. Gonzalez was deposed, he was uninsured, later defaulted and the sole defendants at trial were the bus driver and the transit authority.
- There was no claim for loss of earnings.
- In summations, defense counsel argued that the motorcycle driver was fully at fault; plaintiff’s counsel, Daniel C. Minc, successfully argued that both drivers bore some responsibility for the crash and he suggested an award of at least $900,000 for past pain and suffering and $500,000 to $2,000,000 for the future.