On February 9, 2004 at about 9:30 a.m., Lillian Robinson parked her car across the street from her home on Van Buren Street in Brooklyn and was walking around the back of her car so she could cross the street. After taking one or two steps off the curb, she fell and was injured.

In her ensuing lawsuit, Ms. Robinson, then 64 years old, claimed that she fell because of a pothole in which snow and ice had accumulated and that the City of New York was negligent because it dug a hole that created the pothole years earlier and left it in a dangerous condition. The jurors agreed but they also found plaintiff substantially at fault (for not paying proper attention)  and they apportioned liability 80% to plaintiff and 20% to defendant. They also awarded pain and suffering damages (before apportionment) in the sum of $150,000 (all past – seven and a half years).

Plaintiff appealed arguing that that the liability apportionment was against the weight of the evidence and that the damages award was inadequate.

In Robinson v. Brooklyn Union Gas Co. (2d Dept. 2018), the appellate court modified the liability split, assigning 55% to plaintiff and 45% to defendant. The court declined to increase the damages award, concluding that the jury’s verdict awarding zero damages for future pain and suffering was not contrary to the weight of the credible evidence.

Here are the injury details:

  • comminuted displaced fractures of the tibia and fibula bones in left ankle
  • open reduction internal fixation surgery with insertion of intramedullary nail and four screws
  • confined to hospital for one month, then transferred to a long term facility for four more months confined to wheelchair

Plaintiff’s expert orthopedic surgeon testified that her fractures had healed but that she (a) has permanent swelling, weakness, pain and tenderness, (b) has permanent loss of range of motion and (c) walks with a limp. Defendant’s expert countered that plaintiff’s bones had healed well and were solid and she has no limp or difficulty walking or standing.

Inside Information:

  • Upon her return home from the rehabilitation center, Ms. Robinson returned to her job as a minister but claimed at trial that due to her injury and pain she had to lean or sit to preach. The defense, though, introduced photographs and videos of plaintiff preaching in 2010 and 2011, in which she was standing and walking about and argued that the discrepancy between this evidence and plaintiff’s trial testimony asserting the contrary provided a strong basis for the jury’s declining to credit plaintiff’s claims of ongoing pain or disability.
  • Liability was sharply contested with plaintiff and a witness testifying that a year or two before the accident they saw workers digging holes in the street where she fell (that plaintiff claimed were then improperly or inadequately filled with asphalt); whereas the defendant claimed that plaintiff jaywalked across the middle of the block on a street with known depressions and ice but failed to look down as she did so.

On August 16, 2006 Arnulfo Ahumada was working as a parking attendant in a parking garage at NYU Langone Medical Center at 530 First Avenue in Manhattan when he was struck by a rolling car whose driver had mistakenly left it on the ramp with its gear in neutral instead of park.

Mr. Ahumada, then a 51 year old Bronx resident, claimed significant knee and low back injuries and sued the driver of the car. At trial in August 2015, the judge rendered a directed verdict on liability against the driver and the matter then proceeded to an assessment of damages. The Bronx County jury awarded plaintiff pain and suffering damages in the sum of $750,000 ($500,000 past – nine years, $250,000 future – 10 years). The trial judge agreed with the defense that the awards were excessive and he ordered that the verdict be set aside and a new trial be held on damages. Plaintiff’s appeal followed.

In Ahumada v. Drogan (1st Dept. 2017), the appellate court agreed with the trial judge that the verdict was excessive but found that the judge should have allowed pain and suffering damages in the sum of $450,000 ($300,000 past, $150,000 future).

The decision mentions only that plaintiff’s injuries included a fractured fibula. Here are the injury details:

  • ambulance transport to hospital with complaints of bilateral knee pain and low back pain; treated and released to home with crutches and pain medication
  • admitted to hospital in the ensuing week for two days for possible blood clots in left leg
  • non-displaced left proximal fibular fracture
  • left knee torn meniscus requiring arthroscopic surgery  on 10/26/06

  • on crutches eight months, cane one month
  • out of work seven months
  • extensive physical therapy regimens both before and after surgery
  • herniated disc at L4-5
  • continuing knee and back pain
  • unable to resume bicycle riding, playing soccer, running or prolonged walking or standing

The jury heard extensive medical testimony on behalf of each side including expert orthopedic surgeons Leonard Harrison, M.D. for plaintiff and Mark I. Pitman, M.D. for defendant.

The defense  argued that the fibula fracture was insignificant (especially because it had not been diagnosed until several days later when plaintiff was examined for possible blood clots in his leg), the herniated disc was also insignificant (because there was no impingement on any nerve root) and the meniscus was merely shaved down and not repaired. Furthermore, the defense argued that plaintiff returned to work without restrictions seven months after this accident, hadn’t had any medical treatment for his knee injury for almost eight years and that a subsequent car accident (on 10/5/10) was the cause of any knee or back pain or disability that still existed as of trial and he had a pending lawsuit for that accident in which he’d be compensated for all of his injuries.

Plaintiff countered that the 2010 accident had nothing to do with his left knee or back (the injuries in the subsequent accident were to plaintiff’s neck and shoulder) and that his leg and back injuries are permanent, painful and disabling with the possibility of needing a total knee replacement some time in the future.

Inside Information:

  • The trial judge gave instructions to the jury (the jury charge) that included the issue of the subsequent accident.
  • In his summation, defense counsel suggested that the jury award damages only for past pain and suffering; plaintiff’s counsel asked for $3,000,000 equally split between past and future.
  • The defense hired an investigator who took surveillance film of plaintiff on 15 occasions and claimed that it showed plaintiff working without pain or restrictions. Plaintiff’s counsel contended the film  showed Mr. Ahumada struggling to walk, doing so slowly and with all his weight on his uninjured right leg.