On October 31, 2011, Marion Hedges went to a shopping center at East 117th Street in Manhattan with her 13 year old son. After they left a store, they walked to a parking garage station, when she was hit by a metal shopping cart which two adolescent boys threw over a railing from a pedestrian bridge 70 feet above on the fourth floor of the shopping center.
As a result, Ms. Hedges, then 46 years old, sustained severe incapacitating injuries. She sued the shopping center owners, their management company and their security company. A Manhattan jury apportioned liability 65% against the owners of the mall, 25% against the security company and 10% against the boys who threw the cart. The jury then awarded pain and suffering damages in the sum of $35,000,000 ($6,000,000 past – six years, $29,000,000 future – 29 years). The trial judge agreed with the defendants that the awards were excessive and ordered a reduction to $17,500,000 ($3,000,000 past, $14,500,000 future).
In Hedges v. Planned Security Services, Inc. (1st Dept. 2021), the liability determinations were affirmed but the appellate court further reduced the pain and suffering damages award to $13,000,000 ($3,000,000 past, $10,000,000 future).
Here are the injury details:
- two weeks in hospital, followed by five weeks in a rehabilitation facility and one and a half years of outpatient therapy
- six fractured thoracic vertebrae, scapula fracture, broken ribs and spleen laceration, with continuing pain
- extensive organic brain damage with numerous bleeds and lesions, permanent structural frontal lobe damage and brain shrinkage
- memory loss, double vision, inability to control emotions, headaches, dizziness and incontinence
- requires use of cane to walk (as of five years after incident)
Defendants argued that the pain and suffering awards were excessive claiming that within three weeks of the incident plaintiff “recovered from her injuries other than her brain injury [with respect to which there were no skull fractures and no brain surgery] and was traveling independently.”
Plaintiff had been a real estate broker before the incident but never returned to work. The jury awarded her loss of earnings damages in the sum of $2,500,000 ($1,000,00 past, $1,500,000 future – 29 years). The trial judge reduced this award to $1,900,000 ($400,000 past, $1,500,000 future) and the appellate court affirmed the reduced amount.
The jury also awarded (and the appellate court affirmed) future medical expense damages for a home health aide in the sum of $3,175,000 (29 years).
Plaintiff’s son was awarded emotional distress damages in the sum of $2,500,000 ($1,500,000 past, $1,000,000 future – 54 years). The trial judge reduced this award to $2,200,000 ($1,200,000 past, $1,000,000 future) and the appellate court affirmed the reduced amount.
Plaintiff’s husband was awarded (and the appellate court affirmed) loss of services and society (loss of consortium) damages in the sum of $2,000,000 ($1,000,000 past, $1,000,000 future – 22 years).
- The boys who threw the cart over the railing were arrested and convicted as juveniles.
- Several entities including Business Council of New York State and New York City Transit Authority, filed amicus curiae briefs, arguing that it was improper to allow anchoring – which they defined as plaintiff’s counsel urging jurors to award amounts that vastly exceed prior sustained amounts for individuals with similar injuries. They claimed a “substantial interest in ensuring that personal injury awards in New York remain predictable and stay within the historical range.” The appellate court declined to announce a new rule prohibiting the practice of anchoring.
- This case has been a hard fought battle between some of the leading firms in New York personal injury law – including Kramer, Dillof, Livingston & Moore for the plaintiffs and Mauro Lilling Naparty on appeal for the defendants.