On June 1, 2012, Deborah Ormond was injured when she tripped over a raised and uneven piece of sidewalk next to a metal subway grate in front of 390 Lafayette Avenue in Brooklyn.

Ms. Ormond successfully sued the city transit authority claiming that defendant was negligent in the maintenance of the sidewalk. The jury awarded plaintiff pain and suffering damages in the sum of $2,900,000 ($1,300,000 past – seven years, $1,600,000 future – 10 years).

The defendant appealed arguing that (a) the trial judge improperly instructed the jury as to the application of a city code applicable to the differences in elevation between adjacent sidewalk flags (as opposed to a grating), (b) the jury should have apportioned some fault to plaintiff and (c) the damages award was excessive.

In Ormond v. MTA/New York City Transit Authority (2d Dept. 2022), the liability verdict was affirmed but the appellate court agreed that the damages award was excessive and the panel ordered that the pain and suffering award should be reduced to $1,700,000 ($1,000,000 past, $700,000 future).

The decision does not include any information as to the plaintiff’s injuries. Here are the injury details:

  • torn meniscus in both knees with constant pain
  • herniated cervical and lumbar discs in spine with daily pain
  • unable to resume recreational sports activities and needs cane to go up and down the 25 stairs to her second floor apartment

Plaintiff, 54 years old at the time of her accident, underwent extensive treatment to her knees and both parts of her spine that consisted of physical therapy, chiropractic treatment, five epidural steroid injections and pain management. Her orthopedic surgeon concluded that she would require bilateral total knee replacement surgeries. As of the trial date, though, plaintiff had not undergone any surgery at all.

The defense orthopedic expert opined that plaintiff’s two meniscal tears were not related to her fall and that her spinal complaints were related to degeneration not trauma. In arguing for a significant reduction of the jury’s award, defendant highlighted both the fact that plaintiff never had surgery¬† (“if the pain had been bad enough, a surgeon would have performed the surgery”) and that plaintiff missed only one day of work because of her injuries.

The jury also awarded plaintiff $160,000 for future medical expenses which is the amount her expert physician estimated for the total knee replacement surgeries. The defendant did not challenge this award.

Inside Information:

  • While the appellate court ordered a significant reduction of the jury’s pain and suffering award, the final amount – $1,700,000 – is at the high end for a case like this with no surgery. The firm of Burns & Harris has once again achieved an outstanding result.