On March 12, 2013, Richard Gontarek tripped and fell between flights of the steps of the staircase at the 59th Street and Lexington Avenue subway station in Manhattan.

Mr. Gontarek, then 47 years old, sued the transit authority claiming he fell and sustained injuries because of cracked tiles on the staircase platform. A Manhattan jury found that the transit authority was fully at fault and then they awarded plaintiff pain and suffering damages in the sum of $600,000 ($300,000 past – six and a half years, $300,000 future – 25 years).

The defendant appealed arguing that the award was excessive. In Gontarek v. New York City Transit Authority (1st Dept. 2021), the appellate court affirmed the jury’s award.

Here are the injury details:

  • right shoulder rotator cuff and labral tears with impingement
  • arthroscopic surgery to repair rotator cuff and labral tears with anchor insertion
  • continuing pain, diminished strength, limited range of motion and need for future surgery

The defense noted that plaintiff did not seek any medical attention until six weeks after the accident (which plaintiff claimed was because he could not get an appointment to see an orthopedic surgeon until then) and argued that he recovered well within months of his surgery, has no permanent disability and is able to perform activities of daily living without limitations.

Plaintiff, a Marine Corps veteran, claimed he is significantly limited in recreational and hobby activities that were an important part of his life including Ironman training, scuba diving and bone carving.

Expert orthopedic surgeons testified for both sides. Plaintiff’s expert testified that he will develop arthritis in his shoulder and need to have it replaced (arthroplasty) within 10 years. Defendant’s expert opined that plaintiff will not need any future orthopedic treatment and certainly not any surgery.

Inside Information:

  • In his summation, plaintiff’s attorney requested that the jury award $700,000 for pain and suffering damages; defense counsel told the jury “… damages are irrelevant in this case because I don’t think you’re going to find liability.”
  • In orally denying defendant’s post-trial motion just after the verdict was read, the judge stated that if this were a bench trial she might have awarded “a little bit less than the jury did” but the damages award was reasonable especially in view of the fact that plaintiff’s athletic pursuits were a “major part” of his life.
  • Defendant did not appeal the finding of  liability.