Anterior Cruciate Ligament

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On December 9, 2011 Juan Munoz was working for a construction company at 241 Fifth Avenue in Manhattan when he fell through the partially demolished fourth floor to the third floor  sustaining injuries to his knee, hip and wrist.

241 Fifth Avenue

In his ensuing lawsuit against the building’s owner and general contractor, Mr. Munoz was granted summary judgment on the issue of liability pursuant to Labor Law Section 240(1) and the matter proceeded to a trial on damages only. The Queens County jury awarded plaintiff pain and suffering damages in the sum of $709,000 ($80,000 past – four years, $629,000 future – 50 years).

Both parties appealed. Defendants argued that (a) the case should be dismissed in its entirety because plaintiff was a recalcitrant worker whose own conduct was the sole proximate cause of his accident and injuries and  (b) the future damages award was excessive. Plaintiff countered that (a) summary judgment on liability was appropriate and (b) the future damages award was inadequate.

In Munzon v. Victor at Fifth, LLC (2d Dept. 2018), the judgments have been affirmed.

Here are the injury details:

  • Left Knee: fracture of the medial tibial plateau, torn ligaments, severely torn meniscus
  • Left Hip: diffuse posterior labral tear
  • Left Wrist: partially torn small ligaments (requiring a brace for seven months) – pain resolved within two years

On March 16, 2012 plaintiff underwent left knee arthroscopic surgery to reconstruct his anterior cruciate ligament with a patella tendon autograft, as well as a meniscectomy and chondroplasty.

Plaintiff attended physical therapy three times a week for 11 months but, on February 8, 2013 he underwent a  second arthroscopic surgery which involved debridement of damaged tissue (followed by eight more months of physical therapy). He ambulated only with a brace or cane for about two years when he finally returned to work.

At trial in February 2016, plaintiff claimed he still had intermittent hip pain but his knee caused him daily pain and required occasional use of a cane. His treating orthopedic surgeon testified that Mr. Munoz, then 30 years old, had developed osteoarthritis in his knee and would by the age of 40 require total knee replacement surgery.

Plaintiff did not require surgery for either his hip or wrist injuries and his physical therapy focused almost entirely on his knee injury. The defendants argued that in view of the paucity of treatment regarding plaintiff’s hip and wrist, a good recovery from his knee injury, plaintiff’s return to work, the lack of objective medical proof of osteoarthritis and pre-existing repetitive stress from construction work, the award for future pain and suffering was excessive.

Plaintiff argued that the future damages award was inadequate in view of his need for total knee replacement surgery, continuing pain and inability to engage in many activities he had previously enjoyed such as exercising, playing soccer and taking long walks.

Inside Information:

  • Plaintiff’s pre-verdict settlement demand was $1,000,000 against an offer of $200,000.
  • The jury returned its verdict in one hour.

 

On May 20, 2006 at about 3 a.m., a five-car pile-up occurred on the West Side Highway near 79th Street in Manhattan. Initially, a taxi was rear-ended and caused to strike the car in front of him. While those three cars were disabled in the roadway, James Gregware, coming over a blind hill in the road, rear-ended the car that had rear-ended the taxi. Uninjured, Mr. Gregware got out of his car to exchange insurance information and he was then struck and knocked to the ground by another driver who rear-ended his vehicle.

Another 5 car pile-up

Mr. Gregware, then a 41 year old self-employed film editor, sustained extensive injuries and sued the driver who rear-ended his car, Burtis Construction Company and the City of New York.

At the time, Burtis was performing road work in the area pursuant to a contract with the City. Plaintiff claimed that Burtis and the City were negligent in setting up unsafe lane closures (two of the three lane were closed down) without required warning signs or tapered and staggered lighted-barrels and that as a result drivers were forced to suddenly – and without warning – merge to the right lane causing the accidents that night.

The Manhattan jurors agreed with the plaintiff and on April 15, 2013, after 17 days of trial and five days of deliberations, they were charged by the judge as to the law and then ruled that the City was 65% at fault for the crash and Burtis 35% at fault. They exonerated the driver who struck plaintiff’s car.

The jurors awarded plaintiff pain and suffering damages in the sum of $6,000,000 ($2,200,000 past – seven years, $3,800,000 future – 29 years). They also awarded plaintiff’s wife loss of services and consortium damages in the sum of $1,125,000 ($700,000 past – seven years, $425,000 future – 29 years).

In Gregware v. City of New York (1st Dept. 2015),  the liability and damages verdicts were affirmed but the appellate court found that the jury’s apportionment of 65% of the liability to the City was against the weight of the evidence, in light of the fact that Burtis was responsible for setting up and maintaining the traffic pattern that caused the accident. The case was, therefore, remanded for a new trial on the issue of the apportionment of liability between the City and Burtis.

During the new trial held last week in New York Supreme Court, the parties settled the case for $8,500,000 ($2,000,000 or 23.5% by the City and $6,500,000 or 76.5% by Burtis). The settlement was $1,375,000 more than the total $7,125,000 verdict because of the accrual of about three years of interest.

As indicated in the court’s decision, plaintiff sustained severe and debilitating injuries to his legs, knees, pelvis, shoulder and ribs. Here are the injury details:

  • Right Knee – complete disruption of the anterior cruciate ligament (ACL), medial collateral ligament (MCL), medial patellar retinaculum and part of the quadriceps muscle, comminuted fibular head fracture, partial tear of the vastus lateralis muscle with avulsion fracture of the tibial spine, and a partial tear of the posterior cruciate ligament (PCL)
  • Left Knee – large comminuted avulsion fracture of the lateral tibial plateau, a comminuted fracture of the fibular head with an avulsed lateral collateral ligament, and a torn ACL
  • Pelvis – comminuted fracture deformity involving the right superior pubic ramus
  • Ribs – fractures to ninth and tenth ribs
  • Shoulder – torn right labrum

knee joint ligaments

Mr. Gregware was admitted to the trauma unit of a local hospital for 18 days and then transferred to a nursing facility for inpatient rehabilitation for an additional nine weeks. Upon discharge from the nursing home on August 12, 2006,  Mr. Gregware began outpatient physical therapy attending three hour sessions three days a week for five months (and again intermittently after the  additional surgeries described below).

His injuries required five surgical procedures:

  • On May 31, 2006 – (1) repairs of left knee avulsed tibial lateral plateau fragment with pins and screws and the avulsed lateral collateral ligament with drilled holes, sutures and anchors and (2) right knee ruptured quadriceps tendon sutured, posterior medial corner repaired and MCL repaired with screw
  • On January 22, 2007 – left knee lateral meniscus debridement and chondroplasty and removal of protruding screw
  • On February 5, 2009 – extensive and complex right knee ACL and MCL reconstructions with drilling to insert tendons from cadavers with screws and staples
  • On May 23, 2011 – left knee ACL repair (similar to the right knee repair) and meniscectomy

acl-reconstruction-3

During the 11 days before his initial surgeries, Mr. Gregware was completely bedridden, catheterized, and in tremendous pain despite medication. Then, his legs were casted from his buttocks to his toes for more than a month. After the casts were removed, he was fitted with Bledsoe braces (metal braces with multiple buckles and straps that restrict the legs from bending) which he wore for about two months (and then again intermittently after his additional surgeries).

Plaintiff’s treating orthopedic surgeon, Elliot Hershman, M.D., testified that Mr. Gregware is already suffering from osteoarthritis and that he will require four total knee replacement surgeries during the course of his life (two on each knee) with pain in his knees for the rest of his life.

Inside Information:

  • Plaintiff also sued the drivers of the vehicles involved in the initial collisions. Their motions for summary judgment of dismissal were granted and affirmed on appeal.
  • The defendants’ three expert physicians conducted five separate physical examinations of Mr. Gregware; however, none testified in court.
  • Prior to trial, plaintiffs’ settlement demand was $6,000,000. The defendants’ final offer was $150,000.
  • Plaintiff was represented by the eminent Ben Rubinowitz of Gair, Gair, Conason, Rubinowitz, Bloom, Hershenhorn, Steigman & Mackauf. In his summation, Mr. Rubinowitz asked the jurors to award $3,500,000 for past pain and suffering plus at least $3,500,000 for the future. As to Mrs. Gregware’s loss of services claim, he asked for a total of $1,000,000 but the jurors went beyond that sum and awarded a total of $1,125,000.

 

On March 29, 2009, Blanca Soltero was injured when she fell from a slippery two foot high ledge in a subway tunnel while working as part of a team of  New York City Transit Authority track workers who were replacing old tracks.

track workers

Claiming significant knee injuries, Ms. Soltero sued the City of New York, the owner of the subway tracks. Her motion for summary judgment  under Labor Law 240 was granted and affirmed on appeal.

In the ensuing damages trial, on July 20, 2012, the Bronx County jury awarded plaintiff pain and suffering damages in the sum of $508,000 ($108,000 past – 3 1/2 years, $400,000 future – 21 years). She was also awarded lost earnings damages in the sum of $1,234,000 ($246,000 past, $988,000 future – 21 years).

Both parties made post-trial motions seeking modifications of the amounts of the damages awards:

  • plaintiff argued that (a) the pain and suffering awards were inadequate and (b) the future loss of earnings award was also inadequate
  • defendant argued that (a) the pain and suffering awards were fair and reasonable and thus should not be increased and (b) the loss of earnings awards were excessive.

The trial judge, Alison Y. Tuitt, ordered an increase in the pain and suffering awards to $1,125,000 ($375,000 past, $750,000 future) and declined to disturb the awards for loss of earnings.

As set forth in Judge Tuitt’s post-trial decision, plaintiff’s right knee injuries included several torn ligaments (anterior cruciate, medical collateral and posterior collateral) as well as tears of her meniscus. She was 32 years old on the date of the accident and over the next two years underwent four surgeries:

  1. on 8/7/09 – anterior cruciate ligament (ACL) reconstruction with tibialis anterior allograft, lateral meniscus repair, partial medial meniscectomy
  2. on 5/3/10 – arthroscopy, chondroplasty lateral compartment, removal of painful hardware, partial medial meniscectomy
  3. on 1/21/11 – arthroscopy, partial lateral meniscectomy, chondroplasty and removal of loose chondral body
  4. on 9/26/11 – arthroscopy, patellofemoral chondroplasty, microfracture lateral femoral condyle, grade IV chondral defect, and open tibial tubercle osteotomy/anterior medialization
ACL Reconstruction
ACL Reconstruction

Plaintiff’s orthopedic surgeon, Laith Jazrawi, M.D., testified that her knee was already arthritic and would get worse, she will have permanent pain, discomfort and reduced range of motion, will never be able to return to work as as trackworker and will require two total knee replacement surgeries in the future. There was no medical testimony for the defense.

The defendant consented to the increased pain and suffering awards but appealed claiming that  (a) the past loss of earnings award was excessive and should be reduced by $51,000 (based upon calculations of plaintiff’s expert and the amount asked for by plaintiff’s attorney is his closing argument) and (b) the rate of interest to be paid on the judgment should be reduced from 9% to 3% as set forth in Public Authorities Law Section 1212(6).

In Soltero v. City of New York (1st Dept. 2015), the appellate court (a) rejected the defendant’s argument as to past loss of earnings holding that there was sufficient evidence at trial for the jury’s award and (b) agreed with the defendant that 3% is the proper judgment interest rate in this case because a public authority (New York City Transit Authority) is the real party interest, is bound to indemnify the City pursuant to a lease and will ultimately pay the judgment.

Inside Information:

  • Plaintiff was also awarded $258,000 for future medical expenses (21 years) and the parties stipulated to $75,000 for past medical expenses (the amount paid by plaintiff’s workers compensation carrier).
  • Although two years before the trial (and a second time one year before trial), defendant had plaintiff examined by an orthopedic surgeon, no expert witness disclosure was made until the eve of trial and the defendant was therefore precluded from calling the expert (a new orthopedic surgeon) to testify at the trial.

After a morning of shopping on April 16, 2005, Mildred Manuel boarded a city bus to head home. At her stop, Rockaway Parkway and Schenck Street in Brooklyn, the 64 year old Ms. Manuel stepped out of the bus and fell because of a roadway hole, thereby sustaining serious knee injuries.

 A Kings County jury ruled that the bus driver had stopped in a dangerous place, in front of a rough spot in the roadway, thus rendering the city 100% liable for Ms. Manuel’s injuries.

The jury then awarded plaintiff pain and suffering damages in the sum of $500,000 ($250,000 past – 4 years, $250,000 future) for the following knee injuries:

  • large torn medial meniscus
  • subchondral bone damage

As a result, Ms. Manuel underwent the following treatment:

  • emergency room on date of accident
  • physical therapy for several months
  • arthroscopic surgery seven months post-accident (to repair the meniscal tear)

Ms. Manuel testified that she still has nagging pain, burning, clicking and popping in her knee and that she now no longer takes buses, has cut down on doing her laundry and cooking and has an unsteady gait.

Her doctor testified that Ms. Manuel has early arthritis from the accident, will  not likely to improve and in 5-10 years may need a total knee replacement.

Defendant appealed, arguing:

  1. unsuccessfully, that the bus driver could not have been found negligent because Ms. Manuel herself couldn’t even see the roadway defect (the hole) and that it was trivial as a matter of law;
  2. successfully, that the damages verdict should be set aside because the trial judge should have told the jury that before it could award any pain and suffering damages it had to determine whether or not plaintiff’s injuries qualified as "serious" under New York’s Insurance Law Section 5102(d), one of the provisions of the so-called no fault insurance law; and,
  3. alternatively, that $500,000 is excessive for pain and suffering damages under the facts in this case.

In Manuel v. New York City Transit Authority (2d Dept. 2011), the appellate court affirmed the liability verdict but the money judgment was reversed and the case sent back for a new trial on damages.

Under the law, when injuries arise out of the use or operation of a motor vehicle, a plaintiff has the burden of proving that her injuries meet at least one of the nine definitions of serious injury under Insurance Law Section 5102(d). That’s a tough burden in many cases – especially those that do not involve broken bones and, as here, involve only torn ligaments.

For example, in McLoud v. Reyes (2d Dept. 2011), an appellate court dismissed the case without allowing a trial, ruling that the mere existence of a torn meniscus is not evidence of a serious injury in the absence of objective evidence of the alleged physical limitations resulting from the injury and its limitation.

Had the trial judge in Ms. Manuel’s case required the jury to decide whether or not she met the threshold, they would have awarded no pain and suffering damages at all if they found that Ms. Manuel’s injuries did not qualify as "serious." The new jury will now be instructed to answer the threshold question.

Since the entire damages case was sent back for a new trial, the defendant’s claim that $500,000 was excessive was not ruled upon by the appellate judges.

Had the jury’s damages verdict been ruled upon as to reasonableness of the amount (and if a new jury finds that the threshold has been met), it’s likely that a $500,000 pain and suffering verdict would be affirmed as reasonable given the following cases involving similar knee injuries:

  • DeCastro v. Andrews Plaza Housing Associates (1st Dept. 2011) [discussed at New York Injury Cases Blog, here] – $600,000 affirmed in a trip and fall case for a 45 year old woman with a chondral defect fracture and anterior cruciate ligament tear who underwent arthroscopic surgery (and may need back surgery for a herniated disc)
  • Harris v. City of New York Health & Hospitals Corp. (1st Dept. 2008) – $650,000 in a trip and fall case for a 76 year old woman with torn menisci in both knees who fell and underwent arthroscopic surgery and may need a total knee replacement
  • Diaz v.City of New York (1st Dept. 2011) [discussed at New York Injury Cases Blog, here] –$1,400,000 in a slip and fall case for a 40 year old man with a torn meniscus who underwent  four surgeries and needs a total knee replacement

Inside Information:

  • The defense orthopedic surgeon testified that Ms.Manuel had not suffered a torn meniscus at all; rather, he opined that her MRI merely showed minor wear attributable to normal aging and degeneration (not trauma).
  • Prior to the accident, Ms. Manuel had been suffering from a brain tumor that caused her to rely on her daughter to help her with activities of daily living and the defense argued that some of plaintiff’s post-surgical knee symptoms were traceable to an uneven recovery from her tumor.
  • Plaintiff’s attorney asked the jury to award her in excess of $1,000,000 in pain and suffering damages arguing that the injury "… crippled [plaintiff] for the rest of her life."

The saga began more than 11 years ago one evening in April 1999. Pedro Acosta, then 28 years old, was awakened by a telephone call from a man claiming to be his probation officer. Then there were knocks on apartment his door and loud voices. Although on probation and wearing an ankle monitoring device, Pedro didn’t believe the men were officers and he ran away through his second floor window.

Already on probation, Acosta was wearing an ankle monitoring device, like this:

 

After a chase, Pedro ended up on the sidewalk below – he says from being pushed off the roof by the men (police officers), they say because he fell. He had substantial knee injuries from the fall – torn ligaments and meniscus requiring three surgeries – and in his ensuing lawsuit  the jurors believed his version of the chase incident (even though by then he was in jail, having been convicted of unrelated manslaughter in 2003) and awarded pain and suffering damages in the sum of $1,050,000 (later ruled excessive and reduced by the trial judge to $475,000).

On appeal earlier this year in Acosta v. City of New York (2nd Dept. 2010), the case was tossed out because the judges of the Appellate Division, Second Department ruled that plaintiff’s version of the events was manifestly untrue.

At that time, we discussed this case, here.

We’ve also previously analyzed the types of knee injuries sustained by Acosta here and here.

This is what a typical ACL (anterior cruciate ligament) reconstruction surgery with tendon graft looks like:

 

This week, New York’s highest court, the Court of Appeals, weighed in and reinstated the case ruling that there was a valid line of reasoning to support the jury verdict finding defendants liable. Essentially, the high court judges stated that the intermediate appellate court judges overstepped their authority in this case and improperly evaluated testimony. It was simply beyond their authority to disbelieve the plaintiff as a matter of law.

The case now returns to the intermediate appellate court for a determination of whether the jury’s verdict is in accord with the weight of the evidence and, if so, whether the amount of damages awarded by the jury was excessive.

Inside Information:

  • Although that it’s now been established that the jury was entitled to believe plaintiff’s testimony as to the incident (and clearly they did believe him), it is unlikely that the Appellate Division judges will sustain the liability finding. They will probably rule that the finding was against the weight of the evidence and order a new trial.
  • If there is to be a new trial on liability, there remains the issue of whether the new jury will be directed to determine damages anew or whether the Appellate Division will sustain the reduced pain and suffering award of $475,000, reinstate the jury’s award of $1,050,000 or make some other in between ruling.

UPDATE: On May 3, 2011, the Appellate Division addressed this case again. This time, the court addressed the trial judge’s reduction of the pain and suffering verdict from $1,050,000 to $475,000 and held that the reduction was not enough. In Acosta v. City of New York (2d Dept. 2011), the court ordered a further reduction, this time to $430,000, while also directing that a new trial on liability be held.

 

Pedro Acosta was 28 years old on April 16, 1999 and asleep in his second floor apartment in Brooklyn, New York when at about 11 p.m. four men banged on his door. He ran out the back – through a rear window, onto a roof, down to the street and up onto another roof. The men were New York City police officers intending to arrest Acosta on a complaint that he threatened to kill someone and they gave chase.

When it was all over, Acosta lay on the street with torn ligaments in his right knee that ultimately required three surgeries.

He says the cops pushed him off a roof; the cops say they found him on the street. He promptly sued the city and the officers asserting claims for his injuries and false arrest.

On June 5, 2008, a Kings County jury rendered a verdict in plaintiff’s favor and awarded him $1,090,000 in damages as follows: $1,050,00 pain and suffering ($150,000 past – 8 years, $900,000 future – 20 years), false arrest and battery – $40,000.

In a post–trial motion, the city argued that the entire verdict should be set aside as against the weight of the evidence because plaintiff’s version of the events was so utterly incredible as to be unworthy of belief as a matter of law. And the city sought, alternatively, a reduction in the damages arguing that the amounts awarded were excessive.

The trial judge, James G. Starkey, acknowledged that there was a great deal of testimony indicating that Acosta was lying and suggested that he (the judge) would have found against Acosta if he were the trier of fact. Nonetheless, in Acosta v. City of New York, defendant’s post-trial motion to reverse the verdict was denied. The judge found that the divergent versions of the facts were issues for the jury to decide and they had already ruled.

As to damages, the trial judge reduced the future pain and suffering from $900,000 to $325,000 (and reduced the battery and false arrest awards from $40,000 to $5,000).

Acosta sustained torn medial and lateral menisci and a torn anterior cruciate ligament (ACL) that required three surgeries:

  1. arthroscopy with debridement of the lateral meniscus and the insertion of a screw into the femur and a plug into the tibia
  2. ACL reconstruction with removal of the old graft and replacement with the medial hamstring from the back of plaintiff’s leg
  3. removal of the hardware from the first operation

Here’s the anatomy showing how important the ACL is to the structure and stability of the knee:

Plaintiff’s orthopedic surgeon testified that Acosta remains permanently disabled, with an antalgic limp, pain, instability and arthritis in the knee and weakness in the leg. He requires a brace and cane to walk and will need at least one total knee replacement in the future. This was uncontested as the city offered no expert testimony.

The judge gave no reason at all for reducing plaintiff’s future pain and suffering damages by $575,000 (from $900,000 to $325,000) other than to state they deviated materially from what would be reasonable compensation and to cite the case of Van Ness v. New York City Transit Authority (2nd Dept. 2001). In that case, a 30 year old woman sustained a torn meniscus in her knee (and a flap tear on her femoral condyle), underwent two arthroscopic surgeries and will need a total knee replacement. The jury awarded Ms. Van Ness $1,700,000 for her pain and suffering but on appeal it was reduced to $600,000.

Since the trial judge declined to state why he reduced the damages award in Acosta v. City of New York it’s unclear why he thought the similar injuries in Van Ness v. New York City Transit Authority warranted $125,000 more than what was awarded to Mr. Acosta. It’s also unknown what the judge thought of the comparison offered by plaintiff Acosta in his brief between his injuries and those in Smith v. Manhattan & Bronx Surface Tr. Operating Auth (1st Dept. 2009) where the appellate court sustained $900,000 for very similar injuries.

We’ve discussed some of these prior cases and many of these injuries before, for example, here and here.

On appeal, the city argued again – this time successfully (thereby rendering the damages comparisons academic) – that the jury’s conclusion that Acosta had been pushed from the roof was simply not believable or supportable as a matter of law. In a decision just released, in Acosta v. City of New York (2nd Dept. 2010) the appellate judges ruled that the plaintiff’s version of the events was manifestly untrue, physically impossible or contrary to common experience. In a rare move, the appellate judges substituted their own factual conclusions for the jury’s. They flat out stated that this jury was irrational and reached a conclusion that was clearly against the weight of the credible evidence before them.

Here’s the evidence that appeared to have influenced the appellate court on the question of liability in Acosta v. City of New York:

  • the ambulance call report stated that plaintiff told the medic he had jumped off a roof
  • the emergency room nurse testified that plaintiff told her he had jumped two or three floors from a window
  • plaintiff’s probation officer (from an earlier drug sale conviction) testified that he told her he jumped out of his window because he thought gang members were chasing him and he did not tell her he had been pushed off a roof
  • plaintiff’s ex-girlfriend testified that Acosta told her many times that he hurt himself when he fell down running away from the police who never touched him

Inside Information:

  • in 2003 (four years after the incident), Acosta was convicted of manslaughter and he remains in jail, also convicted of illegal entry into the United States
  • plaintiff was also convicted in 1992 for conspiracy to sell drugs and escaping from jail
  • plaintiff admitted at trial that Pedro Acosta is not his real name and that he’s used many aliases over the years to try to evade criminal detection and deportation

UPDATE: Acosta v. City of New York was reversed by the Court of Appeals on October 26, 2010. Our analysis of the high court’s ruling is here and it includes a link to the decision.

 

Perhaps the term “dance club” is a misnomer here; we’re really talking about moshing (also called slam dancing) which is an informal term referring to dancing to music in a violent manner by jumping up and down and deliberately colliding with others.

Sounds like a sure-fire way to get hurt and that’s just what happened in two cases that have now made their ways up to the New York appellate courts. Each, though, came to a different result.

In one case, a 36 year old concertgoer, David Schoneboom, was injured at a club in Manhattan listening to his favorite group, “The Crumbsuckers.” Earlier in the evening he had watched from the balcony performances from the first two groups: “Kill Your Idols”  and “Subzero.” Why the balcony? Simple. Schoneboom said that it was too violent on the floorwhere he saw moshing was ongoing.

Nonetheless, when his favorite group came on to play, he admits he went down to the floor near, but not into, the area where the moshing was taking place. And that’s when he got shoved from behind into the side of his knee and ended up with a torn anterior cruciate ligament and a torn meniscuswhich required reconstructive knee surgery.

Schoneboom sued the club claiming that it was the club’s negligence in failing to prevent the violence which caused his injury. Not so, said both the trial judge who dismissed the complaint and the appellate court which upheld the dismissal in Schoneboom v. B.B. King Blues Club & Grill.

As we mentioned, here, the lower court determined that Mr. Schoneboom had assumed the risk of being injured,  because he fully appreciated the risk of colliding with a slam dancer and nonetheless elected to place himself in close proximity to that activity.

In the other recent appellate court case involving injuries related to moshing, a 15 year old boy was injured at Club Warsaw in Brooklyn when attending a concert by the group “Senses Fail.” The boy, Elliot Rishty, claims he placed himself 4-5 rows away from any moshing but that the mosh pit spread and he was then elbowed or struck in the nose by a moshing participant. He sued.

The trial judge found that the alleged occurrence was not foreseeable and therefore dismissed the complaint. The appellate court, though, in Rishty v. DOM, Inc., reversed and ruled that a trial should be held to determine whether the defendant should have been aware of and controlled the conduct of its patrons and, if so, whether the failure to do so was a proximate cause of Elliot’s injury.

In an unavailing argument, the defense urged that even if the spread of the mosh pit violence were foreseeable and controllable, Elliot had assumed the risk of any alleged moshing that may have been involved in causing his injury.

The decisions in these two cases, coming within two weeks of one another by two different appellate panels, appear to be irreconcilable. So, we contacted the attorneys, obtained facts not disclosed in the decisions and reviewed the appellate briefs of the parties.

Here are some of the factors that appear to distinguish the cases from one another: 

  • Martin Schoneboom was 36 years old at the time, had participated in moshing at over 30 concerts and saw violent moshing escalating throughout the evening before deciding to stand near the mosh pit.
  • Elliot Rishty was only 15 years old at the time, there’s no evidence he’d ever participated in moshing and it appears that moshing may have been ongoing at his concert for only 15 minutes or so before he was struck.

When there are important areas of law on which different appellate department panels rule opposite one another, then New York’s highest court, the Court of Appeals, may decide to accept an appeal in one of them so as to resolve the issues for the entire state and bind all appellate divisions (there are four of them).

In the two  cases discussed here, it’s unlikely the Court of Appeals would accept such an appeal. The issues as presented in these two cases do not appear to be that far-reaching and the different factual scenarios may explain the contrary holdings.

Rishty v. DOM, Inc. is now headed for trial. We will report on future developments – either a settlement or a trial verdict – and we will continue to explore related assumption of risk case decisions as they are issued.

In several unusual sports related cases around the country recently, injured plaintiffs have failed to win any damages. If we count "slam dancing" as a sport then the score is no wins, two losses and two ties (to be broken by trials down the road).

Loss #1: In Fry v. Jolly Roger Rides, Inc. a Maryland jury returned a verdict for the defense finding that an amusement park was not negligent when an errant basketball struck a woman in the head. Chrisitne Fry had been walking at an amusement park pier when a basketball used in a long range basketball shot game deflected off the game’s apparatus and struck her. She claimed that a year and a half later she underwent neck surgery because the force of the ball aggravated a pre-existing cervical spine injury.

The defendant had sought a dismissal before trial claiming that there was no way it could foresee such an accident. The motion was denied. No matter. The jury heard testimony that there had been no one injured from the game in five years and that the incident was so unexpected the defendant should not be liable for having failed to foresee it. And so the jury dismissed the case.

  • As our friends at Torts Prof Blog suggested, Ms. Fry’s husband probably helped the defense with his testimony that he thought the odds of this accident were "one in a million."

Loss #2: In Schoneboom v. B.B. King Blues Club, a New York judge dismissed without a trial the case of a Manhattan concert goer who sustained a torn anterior cruciate ligament in his knee requiring surgery.

David Schoneboom admitted that he knew there was wild, violent "slam dancing" (also known as moshing) all around the heavy metal band concert.

He still went right up to the front near the stage, next to some of the wildest activity. Low and behold, he got bumped by an unknown person and then he sued the club. The judge found that he had assumed the risk of such an occurrence and injury because he knew that the aggressive moshing was taking place and still deliberately placed himself in proximity to it.

Tie #1: In Sweeney v. Bettendorf, an eight year old girl in the stands at a professional minor league baseball game in Iowa was injured when a player lost control of his bat which traveled 120 feet and struck her in the head.

Tara Sweeney was on a field trip organized by her city parks department. Her injury case against the city was initially tossed out by the trial judge but an appeals court has now ruled (5-2) that the case may proceed to trial because the city had a duty to protect the child’s safety at the ballpark and that a jury could find that parks employees put her in an unreasonably hazardous location to watch the game.

Tie #2: In Allred v. Capital Area Soccer League, Inc., the North Carolina Court of Appels overturned a lower court’s pre-trial dismissal of an injury case brought against a soccer league by a spectator at a game who was struck in the head by a soccer ball before the game even started. Teresa Alford had been in the stands behind one of the goals while the teams were warming up and many balls were being shot by the players towards the goal.

One shot sailed over the goal and hit Teresa casuing severe head injuries.

In discussing the assumption of the risk doctrine, the court noted that the case is at an early stage and the defense has not shown that Ms. Allred’s knowledge of soccer was such that she should have known of the inherent risks of being hit by an errant ball. So the judges ruled that this case may proceed. For now.

  • My prediction: defense verdict at trial.

These assumption of the risk cases will continue to be brought and they will always be controversial.

There appear to be three schools of thought on these cases:

  1. Many who would like to see all of the plaintiffs in cases like the ones discussed here completely barred from the courthouse or, if allowed to trial and they lose, forced to pay the winner’s legal fees.
  2. Others would would like to see a remedy for every person injured, no matter the fault, no matter the social and economic consequences.
  3. Judges who will continue to play a large part in the outcome of each individual case as well as on the impact their rulings have on society at large.

And we will continue to report on these cases and engage in discussions about them.