On February 4, 2012, Anthony Farrugia was working as an operating engineer when he stepped into a hole in the floor of the sub-basement at 1440 Broadway in Manhattan.
Mr. Farrugia, then 29 years old, sued the building owner and others alleging that he sustained serious ankle and back injuries due to their negligence in creating and not repairing the dangerous condition.
Defendants were found to be at fault and the Manhattan jury awarded damages as follows:
- pain and suffering – $50,000 (all past – seven years)
- lost wages – $400,000 (all past)
- medical expenses – $45,570 (all past)
Plaintiff argued that the damages awards were inconsistent, against the weight of the evidence and inadequate; however, in Farrugia v. 1440 Broadway Associates (1st Dept. 2020), the appellate court affirmed the awards.
Here are the injury details:
- presented to hospital emergency room on date of accident but left without treatment
- treated with orthopedic surgeon six days after the accident complaining of ankle and low back pain
- first ankle surgery on 5/7/12 to remove loose body, shave synovium and modified Brostrom reconstruction of ligaments
- second ankle surgery on 7/2/15 to reconstruct ankle ligaments with cadaver ligament and four screws
- herniated disc at L4-5 causing low back pain, radiating, with restricted range of motion, requiring multiple trigger point and epidural steroid injections; recommended for L4-5 decompression and fusion surgery
- continuing ankle and back pain, limitations as to recreational activities and inability to return to any employment
Defendants claimed that plaintiff’s ankle surgeries and his back pain were not the result of the accident; rather they consisted of congenital conditions and pre-existing injuries. An MRI from 2007, five years before the accident, showed a joint space deformity and an osteochondral defect in plaintiff’s ankle as well as an os trigonum in his foot. At most, defendants argued, plaintiff sustained soft tissue injuries as a result of the accident that resolved fully before trial and he was fully able to return to work.
Plaintiff argued that any pre-existing conditions were asymptomatic before the accident, and that defendants were liable for any aggravation or activation. Furthermore, plaintiff argued that the award of $400,000 for past wages and the award for past medical expenses indicated that the jury rejected defendants’ “strains and sprains” defense and, therefore, it was inconsistent to fail to award future damages, especially for pain and suffering.
- The jury determined that plaintiff was 25% comparatively negligent.
- Plaintiff’s medical testimony included his ankle surgeon, his other treating orthopedic surgeon and an expert diagnostic radiologist; the defense offered experts in diagnostic radiology, orthopedics and physical medicine and rehabilitation.