On October 4, 2014, Elizabeth Enriquez, then 63 years old, was injured when she tripped and fell walking down stairs at the Queens Borough Plaza subway station. She sued the city’s transit authority claiming that she fell because of a missing piece of hardware on the final step. The jury found that that the defendant was 100% liable for the accident.
In the ensuing damages only trial, the jury awarded plaintiff pain and suffering damages in the sum of $150,000 (all past – five years and four months). Plaintiff argued that the award was inadequate; however, the trial judge declined to disturb the award.
In Enriquez v. Metropolitan Transit Authority (2d Dept. 2025), the appellate court found that the award was inadequate and:
- (a) ordered an increase of the past pain and suffering award from $150,000 to $300,000;
- (b) rejected plaintiff’s argument that the jury erred in awarding nothing at all for future pain and suffering damages.
Here are the injury details:
- trimalleolar ankle fracture requiring three surgeries – first an emergent open reduction internal fixation surgery with plates and screws inserted
- second surgery, on 3/13/15, to remove some of the painful hardware
- third surgery, on 4/3/17, to remove the remaining painful hardware
- admitted to hospital for a few days for each surgery and to rehabilitation facilities for 70 days until finally discharged to home on 12/11/14
- visiting nurse home care for a year and a half (105 in-home treatments)
- plaintiff testified that she has continuing constant severe stiffness and pain making it difficult to walk without assistance and requiring a home health aide for four hours a day, five days a week
Defendants opposed any increase in the jury’s awards in large part because the plaintiff did not call a physician to testify about her injuries and, especially, her future prognosis. Plaintiff’s counsel claimed that her treating surgeon notified her, in the middle of the trial, that he would not be able to testify because he’d be out of the country. The judge gave the jury a missing witness charge and the plaintiff supported her claim for future pain and suffering damages with extensive medical records in evidence encompassing her surgeries and medical treatment thereafter.
Inside Information:
- In summations, plaintiff’s counsel asked the jury to award $750,000 for past pain and suffering and $500,000 for the future. Defense counsel stated that the only evidence on damages was plaintiff’s “self-serving testimony” and he asked the jury for “no award of any damages.”
- There was no claim for future medical expenses or loss of earnings (plaintiff was a retired school crossing guard).
- During the liability trial, defendants offered to settle for $247,500. Plaintiff rejected the offer.