On October 21, 2013, Cynthia Queen was in Orchard Park crossing the street in a crosswalk when she was struck by a left-turning vehicle driven by Shirley Kogut. Ms. Queen, then 43 years old, was knocked to the ground but able to get up on her own. She felt no pain and declined medical attention. She was driven to her nearby home where she rested.
At home, as the shock of her accident wore off, Ms. Queen’s leg became very painful so that evening a friend drove her to the local hospital where x-rays disclosed a tibial plateau fracture.
In her ensuing lawsuit, the Erie County jury determined that both parties bore responsibility for the accident (plaintiff 70%, defendant 30%) and the jury assessed pain and suffering damages in the sum of $150,000 ($25,000 past – three years, $125,000 future). The trial judge agreed with plaintiff that the award was inadequate and ordered an increase to $250,000 ($125,000 past, $125,000 future).
On appeal in Queen v. Kogut (4th Dept. 2019), the court affirmed the liability verdict and the $250,000 damages award.
Here are the injury details:
- comminuted Type II tibial plateau fracture requiring open reduction internal fixation surgery with a titanium plate and screws
- fibula fracture
- under-surface tear of the meniscus (fixed during the tibial plateau repair surgery)
- 10 weeks non-weight-bearing
- five months of physical therapy
Ms. Queen returned to work as a cashier and salesperson at Old Navy on April 8, 2014 with some pain after being on her feet for several hours “but for the most part,” she was “all right.”
The defendant argued that plaintiff made an excellent recovery and that the jury’s award was adequate; whereas plaintiff contended that the injury was severe, she continued to have pain, will need surgery to remove the hardware, has post-traumatic arthritis in her knee joint and will ultimately need a total knee replacement. The defense orthopedic expert disagreed with each of the plaintiff’s contentions as to future surgeries and the presence of arthritis.
- On the eve of closing arguments, defense counsel extended a settlement offer of $225,000. It was withdrawn before summations were concluded the next day (at which time plaintiff’s counsel stated he would accept it).