On December 25, 2010, Julia Gonzalez was injured when she fell on a wet substance while descending steps at 1436 Beach Avenue in Bronx County, a residential apartment building. She’d been sent there to work as a home health aide for a tenant in the building.
In her ensuing lawsuit against the premises owner, the jury apportioned fault for the accident 75% to the defendant and 25% to Ms. Gonzalez. Then, the jury awarded damages (before apportionment) as follows:
- pain and suffering – $400,000 (all past – 10 years)
- medical expenses – $850,000 ($500,000 past, $350,000 future – 20 years) and
- loss of earnings – $200,000 (all past)
Both parties appealed. Plaintiff argued that the failure to award any future pain and suffering damages at all should be set aside or conditionally increased. Defendant argued that the liability verdict should be set aside and the complaint dismissed; in the alternative, that the awards for medical expenses and lost wages were not supported by the trial proof and should therefore be set aside or, as to past medical expenses and lost earnings, reduced to the amounts plaintiff requested in closing arguments.
In Gonzalez v. 1436 Beach Realty (1st Dept. 2022), the appellate court affirmed the liability verdict and:
- affirmed the past pain and suffering damages award but ordered that a new trial be held as to future pain and suffering damages
- reduced the past medical expenses award to $262,960 and ordered that a new trial be held as to future medical expenses, and
- reduced the past lost earnings award to $189,108
Here are the injury details:
- lumbar compression fracture requiring three level decompression and fusion surgery
- second lumbar surgery to remove hardware two years after first surgery
- comminuted displaced patella fracture of right knee
Plaintiff adduced expert testimony that she is suffering from failed back syndrome and has post-traumatic arthritis in her knee and therefore will likely require additional back surgery and a total knee replacement. The defense argued that plaintiff’s injuries were degenerative, preexisting and not caused by the accident.
- There was no claim for future loss of earnings because plaintiff, 56 years old on the date of her accident, conceded she would have retired at 65 years of age (which she reached before the end of the trial).
- In closing arguments, defendant’s attorney argued that plaintiff had not proven her case and he asked the jury to “send her home with nothing.” Plaintiff’s attorney asked the jury to award $2,800,000 for pain and suffering damages.