On May 26, 2010, Anthony Rivera was driving his car on Long Ridge Road in Pound Ridge when another car made a left turn and crashed into him. Mr. Rivera, then 30 years old,  sustained significant hip and knee injuries.

Mr. Rivera sued the driver and owner of the other vehicle and was awarded summary judgment of liability. The case then proceeded to a trial to determine the amount of damages.

The Westchester jury awarded plaintiff pain and suffering damages in the sum of $1,300,000 ($300,000 past – five years, $1,000,000 future – 40 years). He was also awarded damages for medical expenses ($170,000 past, $240,000 future) and loss of earnings ($75,000 – past). The awards have been affirmed in Rivera v. Kolsky (2d Dept. 2018).

Here are the injury details:

  • Intra-articular comminuted fracture dislocation of left hip (posterior wall acetabular fracture plus osteochondral femoral fracture) requiring two days of skeletal traction with the insertion of a distal femoral traction pin and then removal of the pin, open reduction internal fixation of the acetabular fracture with a bone graft harvest, screws and a nine-hole plate and open treatment of the femoral fracture
  • Three week emergent hospital admission followed by five week admission to nursing home for rehabilitation
  • Continuing pain and limited range of motion in hip and post-traumatic arthritis requiring hip replacement surgery within four years
  • Left knee torn meniscus requiring total knee replacement surgery within three to five years

 

A Post-Op X-Ray Similar to Plaintiff’s

Before the accident, plaintiff had been working at Home Depot earning about $25,000 a year. He was out of work for three years after the accident when he returned to Home Depot in the kitchen design department. There was no claim for future loss of earnings.

The defendants’ theme at trial was that plaintiff exaggerated his injuries. They conceded he sustained a significant hip injury with residuals but argued that “he’s driving, he’s going to work, he’s not using a cane … he does everything everybody else does” and he deserves no compensation for his alleged knee and pre-existing back injuries. The verdict sheet contained a specific question as to  whether the accident was a substantial factor in bringing about the injury to plaintiff’s back and they answered “no.” As to the knee, an MRI shortly after the accident disclosed a torn meniscus but two years later, another MRI was taken and plaintiff’s treating doctor then opined there was no meniscal tear and he elected not to perform an arthroscopy. Plaintiff’s medical expert at trial disagreed. The defense position was that there was no tear and any knee pain plaintiff was experiencing was due to his morbid obesity.

Inside Information:

  • Defendants opposed plaintiff’s pre-trial motion for summary judgment as to liability claiming that (a) winding, blind curves at the accident location caused the defendant driver to be unable to see the plaintiff’s vehicle and (b) plaintiff may have been speeding. These arguments were rejected and plaintiff’s motion was granted.
  • After plaintiff and his medical expert testified, the defendants rested without calling any witnesses.
  • In his summation, plaintiff’s attorney suggested $6,000,000 for pain and suffering damages; defense counsel simply stated that the jury should award what is reasonable or adequate (for the hip only), adding “He’ll probably blow it on something anyway, but at least give him what he’s entitled to for the hip.”
  • Plaintiff’s pre-trial settlement demand was $1,000,000 against an offer of $350,000.
  • This case was hard fought by one of New York’s most highly regarded plaintiff personal injury lawyers, Michael Ronemus and a worthy counterpart from the defense side, Robert Ondrovic.

On September 19, 2009 Frederick Knight went to his son’s automobile race at the Fulton Speedway, a 3/8 mile clay racetrack at County Route 57 in Fulton. He paid a special fee to watch from the pit area behind the track and had been there for two hours standing near his son’s car watching the early races when one of the 80 cars scheduled to race that night backed into him and knocked him to the ground causing serious injuries.

The Fulton Speedway

Mr. Knight, a 69 year old retired truck driver, sued both the driver who struck him and the owner of the track. After a trial in Onondaga County, a directed verdict was entered in plaintiff’s favor and the jury then awarded damages  for (a)  pain and suffering in the sum of $280,000 ($140,000 past – six years, $140,000 future – nine years) and (b) loss of household services in the sum of $440,000 ($140,000 past, $300,000 future – nine years).

In a post-trial motion, the defendants contended that (a) there was no basis for liability in view of a waiver plaintiff signed upon entering the speedway and the application of General Obligations Law Section 5-326 and (b) the loss of household services awards were excessive and without basis (they did not challenge the awards for plaintiff’s pain and suffering). The trial judge denied the motion.

In Knight v. Holland (4th Dept. 2017), the appellate court upheld the liability verdict but reduced the loss of household services award to $100,000.

The court’s decision discusses the waiver and liability issues in detail. Here are the injury details:

  • right intertrochanteric hip fracture requiring open reduction internal fixation surgery with intramedullary rod
  • recurring infections in right hip and knee requiring  removal of hardware from  hip and prior right knee replacement surgeries
  • unable to walk without a walker
  • difficulty standing and sitting, getting into and out of a car and picking up right foot and leg
  • constant right hip and leg pain

At the time of the accident, plaintiff had been living for 14 years with Rayne Dabney who has been confined to a wheelchair her entire life and he helped her with all activities of daily living (including transferring her in and out of bed) . He’d break her chair down into its component parts to get it into their car, help her in and out and put the chair back together. Also, in the past, he did all of their grocery shopping, ran all of their errands and managed their household . Now, he can do none of that.

The appellate court substantially reduced the loss of household services award without setting out any factual basis but, too, there was only little proof at trial in terms of hard numbers relative to the loss of household services claim.

Inside Information:

  • Defendants counterclaimed against plaintiff alleging that his lawsuit was frivolous in light of the waiver and they sought to recover their defense costs from him.

 

 


Slip and fall injury cases in New York are quite common. They are also among the most difficult to win for the injured party. All three cases in the latest round of slip and fall trial court decisions released in New York are from accidents in the winter of 2006-2007. Two were dismissed on motions for summary judgment by the defense and only one is being permitted to proceed to trial.

In Officer v. 450 Park LLC, a woman arrived at work just before 9 a.m. on February 14, 2007, took a few steps into the lobby of her building and promptly slipped and fell on the marble floor severely injuring her shoulder.

Building lobbies, with marble floors, are the subject of two new cases:

In her ensuing lawsuit against the building owner and manager, she claimed that on this wet, snowy, rainy day there should have been a safety mat by the entry door to prevent her fall.

In dismissing Ms. Officer’s case (after depositions were held but before trial), the judge noted:

  • video and still film supported the security guard’s statement that mats were placed at the two entrance doors
  • plaintiff did not know where she fell: whether on a mat or the marble
  • defendant had mopped the floor 20 minutes before plaintiff fell

There is no legal requirement that property owners provide a constant remedy to the problem of water being tracked into a building in rainy weather; nor is there an obligation to continually mop up all tracked in water. And in general there’s no obligation to put down floor mats when it rains.

To win a case like this, a plaintiff must show:

  1. the defendant caused or created the dangerous condition or
  2. had actual (someone told him) notice of the dangerous condition (the wet floor) or
  3. had constructive notice – i.e., the condition was present for a long enough time that the defendant should have known about it and had time to correct it.

It’s extremely rare that plaintiffs ever prove a defendant caused or created a dangerous condition in a slip and fall case and it’s nonexistent in tracked-in rainwater cases. Actual notice is also rare – only a few times in many years of practice have I had a case in which evidence was uncovered of someone actually telling the premises owner of a dangerous condition before my client fell. So, we are almost always left trying to win slip and fall cases using constructive notice as a basis for liability.

In the Officer case, the judge held that the defendant knew of the dangerous condition before plaintiff fell but no liability was possible because the judge said that the defendant took reasonable steps for the safety of its customers – it placed mats down and mopped the floor.

In a similar case, Brenowitz v. Commerce Bancorp, a woman slipped and fell on a wet marble floor at the defendant bank at 2 Wall Street in Manhattan on a rainy day –  December 1, 2006. She fractured her wrist and sued the bank claiming that liability should be imposed because the bank’s marble floor was unusually slippery and dangerous when wet. In dismissing her case, the judge noted that the bank neither created the wet condition, nor did it have actual or even constructive notice of it. In any event, the decision notes, the bank had umbrella stands available, a porter who would mop when the floor was wet (and he was not advised to do so that day) and the entrance area was carpeted.

Umbrella stands can help property owners win in slip and fall cases:

The one new case that’s being permitted to go to trial is Stellman v. New York City Transit Authority. In that case, on February 15, 2007 (the day after Ms. Officer fell – see above case), a man slipped and fell on ice that had formed on the steps of a city subway station at West 86th Street.

Here’s what the icy steps may have looked like for Mr. Stellman:

His claim against the city was that its employees knew or should have known of the ice formation because snow and freezing rain from the day before ended 15 hours before Mr. Stellman’s fall. Since there was no new snow or ice after that and since the temperature did not rise above 30 degrees once the snow and rain stopped, plaintiff (through an expert in meteorology) showed to the court’s satisfaction that the city’s employees had enough time to clear up the ice so as to prevent plaintiff’s fall. The plaintiff did not thereby win his case. He simply survived the defendant’s motion for a dismissal at this early stage and he’s now allowed to proceed to trial. There, the jury will hear testimony, see exhibits and determine for itself whether or not to impose liability against the city.

Slip and fall cases – especially those arising from wet floor or stair surfaces – often result in very serious injuries such as hip fractures, wrist fractures and shoulder injuries. Injured parties often think that simply because they fell on someone else’s property which was dangerously wet there must be liability against the property owner. Not so. Not even close.

The law is very much in favor of the property owner in these cases and there are several hurdles (such as the "notice" requirements) that a plaintiff must jump merely to be allowed to present his case to a jury. Even then, of course, the verdict may be in favor of the defense.

The three recent cases discussed herein are well in line with the trend in New York favoring the defense in slip and fall cases. Both injured parties and their lawyers should be guided accordingly and approach these cases with caution and a realistic view of their chances of success.