On September 6, 2006, Pauline Barrett was attempting to exit the city bus she’d been on when her right heel got caught in a hole in the rear stairwell of the bus.
Barrett sued the transit authority claiming that she sustained serious injuries as a result of a dangerous stairwell defect that the defendant should have known about and remedied before her accident. The Kings County jury agreed but found plaintiff bore some responsibility too and it apportioned fault 75% to the defendant and 25% to the plaintiff.
In a separate damages trial, the jury awarded plaintiff $2,000,000 (all past – nine years) for her pain and suffering plus $971,000 for past and future lost earnings. Both awards were affirmed on appeal in Barrett v. New York City Transit Authority (2d Dept. 2019).
The appellate court decision did not at all mention the injuries sustained by the then 37 year old Ms. Barrett. Here are the injury details:
- ankle sprain
- right shoulder rotator cuff tear and impingement, requiring arthroscopic surgery to repair
- left shoulder impingement, requiring arthroscopic surgery
- right wrist triangular fibrocartilage complex tear, requiring open surgery to repair with anchors
- lumbar radiculopathy and chronic neck pain, requiring epidural injections
- depression and anxiety
Plaintiff’s damages case was bolstered by medical experts including her orthopedic surgeon, pain management doctor and psychologist who testified that (a) all of her injuries were caused by the accident, (b) plaintiff’s mobility loss in her shoulders and wrist are permanent and therefore it’s unlikely she could ever return to full time work (she’d been a financial analyst), (c) plaintiff continues to suffer from pain in her neck, back, shoulders and foot requiring ongoing medication and physical therapy and (d) objective tests demonstrated plaintiff’s significant depressive and anxiety disorders (her psychologist stated that her inability to return to work “was one of the great stressors in her life”).
The defendant argued that plaintiff’s many injuries were not caused by the accident, noting that at the scene, in the ambulance and at the hospital emergency room, she only complained about right ankle pain and swelling and that it wasn’t until she saw a doctor at a “therapy place” five days later that she complained about her shoulders, wrist and spine. The defense contended that the case was about “a simple stumble and sprained ankle.”
Three months before the accident, Ms. Barrett had been hired by JP Morgan Chase as a financial associate/officer. Her salary was $55,000 with full benefits and eligibility for a bonus. She never returned to work. She did, though, start graduate classes in September of 2009 for two semesters and applied, unsuccessfully, to return to her prior job.
- The only doctor who testified for the defense was a neurologist who had conducted a no-fault examination in July 2007. He made it clear that he examined plaintiff only “interested in neurologic issues”, not her multiple orthopedic injuries. The defense had plaintiff examined by an orthopedist but did not call him to testify at trial.
- Plaintiff’s orthopedic surgeon testified that even though she never fell to the ground, she tore her rotator cuffs when she fell forward while holding the door rail: “[t]he power or the weight and the momentum behind her of moving forward is being restrained by her hands behind her and that puts a lot of stress in the front of your shoulders.”