On, January 21, 2008, William Tate-Mitros, stepped out of a city bus onto a sidewalk in Manhattan when another city bus mounted the sidewalk and its tire ran over his foot.

After his lawsuit against the transit authority resulted in a defense verdict, Tate-Mitros appealed and the First Department reversed because of a preclusion order error. On retrial, a new jury found for plaintiff and awarded him pain and suffering damages in the sum of $14,000,000 ($7,000,000 past – 10 years, $7,000,000 future – 10 years). The trial judge reduced the verdict to $4,500,000 ($2,500,000 past, $2,000,000 future).

On appeal in Dees v. MTA New York City Transit (1st Dept. 2019), the court agreed with the defendants that the award remained excessive and it ordered a further reduction to $3,500,000 ($2,500,000 past, $1,000,000 future).

The appellate court decision did not mention the injuries sustained by Mr. Tate-Mitros (who died during the pendency of the appeal). He sustained massive right foot crush injuries:

  • nine fractures involving toes and metatarsals
  • extensive tissue and muscle damage
  • ruptured dorsalis pedis artery
  • three surgeries involving the reconstruction of his artery and tissue, application of a skin graft harvested from his thigh and debridement of damaged tissue
  • admission to a hospital for 43 days and to a rehabilitation facility for 10 more days
  • constant and permanent pain, loss of strength, balance and range of motion
  • deformed, clawed foot
  • unable to ambulate even short distances without assistance

Plaintiff, 61 years old at the time of his accident, continued working as an interior designer for three years thereafter but was unable to continue due to his injuries (he made no loss of earnings claim). Then, he suffered an unrelated stroke four years after the accident that exacerbated his foot weakness and required him to use a walker instead of the cane he’d used up to that point. He was then unable to live on his own and ended up in a nursing home (his treating doctors testified that the stroke was neither massive nor disabling but that it aggravated or worsened the consequences of his foot disability making him more dependent on a walker as opposed to a cane and he would not have needed to be in a nursing home on the basis of the stroke alone).

The defense, while declining to proffer any medical expert testimony, argued that:

  • the surgical procedures plaintiff underwent were less intrusive than open reduction surgery with hardware implants
  • there was no evidence that plaintiff would require any future surgery, he had no medical treatment or pain medication¬† for his foot for several years before trial (plaintiff testified that he refrained from narcotic pain medication because he feared becoming addicted)
  • the main factor diminishing plaintiff’s enjoyment of life was his post-accident stroke