On December 21, 2012,Zobeida Hiciano was injured when she was struck by a vehicle as she walked across Jerome Avenue in the Bronx.

After opening statements in her lawsuit against the driver and owner of the vehicle to recover damages for her back and elbow injuries, the trial judge directed a verdict in Ms. Hiciano’s favor on the issue of liability, leaving the question of her comparative negligence, if any, to be determined.

The Bronx County jury determined that the driver (who was backing up in the process of parallel parking) was only 35% at fault, assigning 65% of the fault to the plaintiff (who was crossing the street in the middle of the block). The jury awarded pain and suffering damages in the sum of $150,000 ($100,000 past – six years, $50,000 future – five years).

On plaintiff’s motion, the trial judge ruled that (a) the jury should have allocated 50% of the fault to each side and (b) the pain and suffering damages award should be increased to $1,800,000 ($900,000 past, $900,000 future).

The appellate court, in Hiciano v. Benson (1st Dept. 2020), reversed the trial judge’s order and reinstated the verdict.

Here are the injury details:

  • displaced intraarticular radial head (elbow) fracture  with open surgery involving removing a part of the tendon and making three holes in the surrounding bone
  • lumbar spine injury with surgery involving the insertion of screws in the spine, a bone graft and reconstruction

Plaintiff, 66 years old at trial, claimed continuing pain and limited range of motion in her arm and spine. The defense argued that neither surgery was needed because of the accident trauma and, in any event, plaintiff made an excellent recovery.

Medical experts testified for both sides, including both of plaintiff’s treating surgeons. The defense neurosurgeon testified that plaintiff had significant pre-existing degenerative disease in her back and sustained merely a strain as a result of the accident. The defense orthopedic surgeon testified that plaintiff’s elbow surgery was not related to the accident trauma but instead to repetitive motion and that in any event plaintiff made an excellent recovery.

Inside Information:

  • Plaintiff walked away from the scene of the accident but later that day went to the nearby hospital complaining of pain in her elbow and back.
  • Plaintiff testified at trial through a Spanish speaking interpreter.
  • In his summation, defense counsel argued that plaintiff was solely at fault and that the surgeries were not needed because of the accident. He then said, “if you believe that she injured her elbow, fair and reasonable compensation for her elbow is $150,000” and “If you believe that  everything [regarding the lower back] is related to the accident, and this is the competent cause for everything that led to … the spine surgery, I submit to you $450,000 is fair and reasonable compensation. That’s $600,000 in total, total recovery.”