On December 5, 2016, Clarington Fortune was working as a roofer installing a new water tank at a New York City Housing Authority building in Brooklyn when a co-worker fell about 20 feet from the top of the tank and landed on him. Mr. Fortune, then 70 years old, sustained significant hip injuries.

Mr. Fortune sued the premises owner under Labor Law Section 240(1) and was granted summary judgment as to liability. A damages only trial ensued following which the jury awarded plaintiff pain and suffering damages in the sum of $3,000,000 ($2,000,000 past – four years, $1,000,000 future – 10 years).

Defendant successfully challenged the award as excessive and, in Fortune v. New York City Housing Authority (2d Dept. 2022), the appellate court ordered a reduction to $2,000,000 ($1,300,000 past, $700,000 future).

Here are the injury details:

  • acetabulum fractures that required emergent open reduction surgery
  • admission to hospital for two weeks
  • inpatient treatment at a rehabilitation facility for almost four months
  • a permanent left foot drop
  • total hip replacement surgery on 1/25/18 with a 10 day re-admission to hospital
  • inpatient treatment at a rehabilitation facility for an additional four weeks
  • a permanent limb length discrepancy of 45 millimeters, which is almost two inches

Plaintiff claimed that he was left with only two-thirds of normal range of motion of his hip, has permanent pain, is limited in significant activities of daily living and has a slow antalgic gait.

The defense did not significantly challenge the severity of plaintiff’s injuries while arguing that a review of comparable hip injury cases suggested that “the sustainable range for plaintiff’s pain and suffering damages runs from approximately $500,000 to $1 million.” As to the additional foot drop injury, the defense stated that this is, at best, “a modest verdict escalator.”

Inside Information:

  • The defense argued that plaintiff’s counsel’s summation was improper and played a role precipitating an excessive award. Among other things, the defense argued that the summation improperly (a) stoked anti-corporate animus against the defendant, (b) made improper “golden rule” arguments by repeatedly asking the jury to place themselves in plaintiff’s  shoes, (c) invoked the jury’s sympathies and inflamed their passions and (d) called defense counsel a liar. The appellate court stated that the challenged conduct was improper but not so pervasive or prejudicial to have resulted in an unfair trial for the defense.
  • The jury also awarded (and defendant did not challenge on appeal) damages for past and future medical expenses in the sum of $1,006,000.