On September 3, 2013, at about 11 p.m., William Tyrell fell down an exterior concrete 16 step staircase at 243 Vrooman Avenue, a two story, two apartment rental building in Amsterdam, New York. Mr. Tyrell, then 77 years old, had been visiting the upstairs tenant. He was found at the bottom of the staircase, unconscious. There were no witnesses to the fall.

243 Vrooman Avenue, Amsterdam, NY

Mr. Tyrell was rushed by ambulance to the local hospital where he was conscious upon admission and diagnosed with the following injuries:

  • basilar skull fracture
  • subdural cranial hematoma
  • cerebral hemorrhage
  • fractured occipital bone

Within a few hours, Mr. Tyrell was transferred by ambulance to Ellis Hospital in Schenectady because his head injuries required a higher level of care than the local hospital could provide. There, he suffered seizures and a craniotomy was performed to alleviate the hematoma. He was placed on a ventilator and then in a chemically induced coma. Unsuccessful weaning from the intubation resulted in a tracheostomy about a month after the fall.

On October 11, 2013, Mr. Tyrrell was transferred to Pathways, a rehabilitation facility in Niskayuna. He returned to Ellis Hospital from Pathways to deal with critical health issues on three occasions in the next three months and again on January 5, 2014, when he died from his severe brain injuries.

Two months before Mr. Tyrell’s death, he commenced a lawsuit against the building owner claiming he fell because the staircase was defective, dangerous, improperly repaired in the past, non-code compliant and deteriorated with missing or broken chunks on several different steps.  There was no opportunity to take Mr. Tyrell’s deposition because his ability to communicate was seriously compromised while he was lethargic, intubated, in a coma and once his tracheostomy was performed.

The action was tried in Fulton County and the jury rendered its verdict on January 13, 2017 finding that defendant was negligent and awarding pain and suffering damages in the sum of $325,000 (four months).

The defendant appealed challenging the verdict as being unsupported by sufficient evidence, arguing that plaintiff could not establish the cause and location of decedent’s fall and, therefore, any finding of causation would have been improperly based upon speculation. In Tyrell v. Pollak (3d Dept. 2018), the appellate court rejected defendant’s arguments and the verdict was affirmed.

Inside Information:

  • There was no challenge by either party as to the amount of the damages awarded by the jury.
  • The building tenant visited by Mr. Tyrell testified that before the accident she had complained at least five times about the condition of the stairs to the defendant’s property manager and called it “a death trap waiting to happen.”
  • Defendant’s investigator photographed the scene after the accident, including previously repaired steps in the middle (steps six and seven) that had flaked and crumbled. There was blood from the decedent both on those middle steps and at the bottom two steps. The defense position at trial was that Mr. Tyrell fell on one of the bottom two steps. The trial judge called it “outrageous” and incredible when the defense failed to produce the photograph of the bloody, crumbled middle steps and the investigator claimed she had no memory of conducting the investigation.

On November 29, 2004 at about 3:15 p.m., Rashawana Belt was on the sidewalk that abutted the eastbound side of 110th Avenue, near its intersection at Merrick Boulevard, in the Jamaica section of Queens. In a split second, her life would change unalterably when a drunk driver mounted the sidewalk, struck Rashawana and drove her into a wall causing massive injuries to the 22 year old college student.

Cars should not be driven on sidewalks!

After a trial in 2009, Ms. Belt was awarded pain and suffering damages of $15,000,000. Claiming the damages awarded were excessive, the defense successfully appealed and, in Belt v. Girgis (2d Dept. 2011), the appellate court has ordered a reduction to $5,000,000 ($2,000,000 past – 3 1/2 years, $3,000,000 future – 10 years).

Here are the details of the injuries sustained by Ms. Belt::

  • traumatic brain injuries – cerebral concussion, temporal bone fracture, intracranial hemorrhage and frontal lobe hematoma
  • displaced transverse femur fracture
  • pelvic fracture
  • ankle fracture with significant scarring
  • severe clavicle fracture

Her injuries left Rashawana hospitalized for five months during which time she was in a coma for four weeks, underwent a tracheostomy, and had her femur fracture repaired via open reduction with internal fixation using an intramedullary rod.

Unfortunately, plaintiff was left unable to walk without a cane, with a permanent palsy of her face and permanent memory loss. At trial, it was shown that she functioned at a grade school level, was severely incapacitated and could not return to school or her part-time job as an office assistant.

In reducing the verdict from $15,000,000 to $5,000,000, the appellate judges cited and relied upon several prior relevant decisions:

  • Coque v. Wildflower Estates Developers, Inc. (2d Dept. 2008) – $4,300,000 (increased from $1,750,000) for a 31 year old who sustained a burst fracture of his thoracic spine leaving him paralyzed from the waist down, incontinent and requiring self-catheterization six times a day.
  • Cintron v. New York City Transit Authority (1st Dept. 2008) – $4,750,000 (increased from $2,500,000) for a 14 year old who sustained multiple skull fractures requiring surgery (and  a hip fracture). He was left with cognitive impairments such as diminished sensory skills in his hand and his visual-spatial thinking but by the time of trial was able to get a high school diploma and work as a carpenter.
  • Chelli v. Banle Associates, LLC (2d Dept. 2005) – $3,500,000 (reduced from $4,500,000) for a 38 year old who sustained compound depressed skull and highly comminuted hand fractures requiring a craniotomy and open reduction internal fixation hand surgery leaving him with traumatic brain injuries including severe linguistic defects, bilateral hemiparesis and unable to walk without an ankle foot arthrosis and a cane.
  • Reed v. City of New York (1st Dept. 2003) – $5,000,000 affirmed for a 43 year old who sustained multiple skull fractures, a subdural hematoma and occipital contusions causing permanent brain damage that left her demented, with a complete loss of olfactory sense and unable to lie down (requiring her to sleep in a sitting-up position)

Inside Information:

  • A witness reported that the driver continued to apply the car’s accelerator pedal after the vehicle had stopped and pinned Belt, despite Belt’s screams and the witness’s pleas.
  • The  driver was imprisoned as a result of the drunk driving incident and he did not attend the trial.

 

 

 

A significant element of damages in New York wrongful death personal injury lawsuits is pre-death pain and suffering. This can be very difficult to prove (as opposed to other elements such as the decedent’s future lost earnings).

Here’s Pattern Jury Instruction 2:320 which is what New York judges tell juries about pain and suffering in death cases:

  • “As to the claim for damages sustained by [the decedent] before he died, plaintiff is entitled to recover such sum as you find will fairly and justly compensate for the pain and suffering actually endured by the decedent during such time as he was conscious from the moment of injury to the moment of death.”

In the case of someone who clearly suffers a great deal over a long period of time before he dies (for example a burn victim who undergoes many painful procedures over many months before dying, or a malpractice victim who has medical complications, pain and extensive suffering for years before death), the pre-death conscious pain and suffering claim is apparent and may be quite substantial (in the millions of dollars).

The difficult cases are those like the two that were ruled on recently. One involved a hospital patient who choked to death on his lunch; the other a woman walking down the street who was struck by a falling tree.

In each case, death resulted in a very brief time after the negligence. In one, it was only seconds later; in the other, it was a half-hour or so.  In both, substantial jury awards were made for pain and suffering –  in one case the appellate court affirmed $350,000 for a few seconds of pain and suffering; in the other it approved $800,000 for a half hour of pain and suffering.

Perez v. St. Vincent’s Hospital dealt with the death of a man who presented to the emergency room with urinary difficulties. Anastacio Perez was diagnosed with alcohol withdrawal and consequent dehydration and admitted for treatment. Since he had previously suffered throat cancer and could not eat sold food, his doctors issued orders that he was to receive no food or drink by mouth.

Several days later, though, on the day of his scheduled discharge home, when his condition had improved, Mr. Perez was given solid foods for lunch (chicken and cucumber) which he started to eat. He choked on the food as one of his sons came to visit him.

A sign like this on his hospital door (NPO means nothing by mouth) may have saved Mr. Perez:

What followed was a frantic scene in which Mr. Perez clutched his throat, flailed his arms and had a look of terror in his eyes. Attempts to save him failed and he was pronounced dead an hour or so later. The jury returned a verdict for pre-death pain and suffering in the sum of $1,500,000 and on appeal the court reduced that to $800,000.

The defense argued that certain hospital records indicated the choking incident began 35 minutes before death was pronounced while plaintiff argued that the period was as much as an hour and a half (based on when a family member said the incident began). Medical experts testified trying to calculate the period of suffering based on known facts, the autopsy report and certain assumptions.

In any event, it was clear that whether Mr. Perez choked to death over a 15 minute period, 35 minutes or 90 minutes, it was a gruesome scene and a horrific way to die. And the appellate judges agreed in determining that $800,000 was reasonable for pre-death pain and suffering.

In Segal v. City of New York, 52 year old Hinda Segal’s skull was crushed and she was killed by falling tree limbs. Walking with her daughter on a Brooklyn street one fine summer morning in July 2003, a storm broke out and overhead tree branches broke off and hit Mrs. Segal in the head knocking her to the ground. Her daughter, Shifra Berger, had been walking with her hand in hand. They saw the tree falling and Shifra saw her mother try to get the branches out of her face, heard her mother call out, saw her mother get hit and felt her mother squeeze her hand as she lay dying on the sidewalk.

Mrs. Segal never had a chance; a warning like this might have saved her life:

An ambulance came quickly but Mrs. Berger was pronounced dead 45 minutes later. Cause of death: skull fracture with avulsion to her head and massive blood loss.

At trial, negligence against the city was proven (and affirmed on appeal) because it failed to discover that the tree was rotted and could fall and it failed to take any steps to prevent this type of foreseeable incident.

Shifra Berger (decedent’s daughter) suffered a huge emotional loss, succumbed to severe post-traumatic stress disorder and the jury returned a verdict of $1,750,000 for her emotional distress (modified downward by the appeals court to $1,250,000)

In an attempt to establish pre-death pain and suffering, plaintiff called upon Lone Thanning, M.D. , a forensic pathologist, who testified that Mrs. Berger survived for a mere 8-10 seconds (half being pre-impact terror and half being post-impact consciousness). The city’s expert, Adhi Sharma, M.D., an emergency medicine specialist, testified that there was no evidence of any pre-impact terror or any conscious pain and suffering at all after Mrs. Berger was struck. He concluded that Mrs. Berger’s squeezing of her daughter’s hand was not willful but merely reflexive.

The jury rejected the city’s expert and found that Mrs. Berger had indeed suffered great pain and suffering and pre-impact terror, if only for a few seconds. For conscious pre-death pain and suffering the jury awarded $350,000 and that sum was upheld as reasonable by the appellate judges. They ruled that the evidence was sufficient for the jury to award damages and that the jurors were free to accept one expert’s opinion and reject the other’s.

The $350,000 verdict for pain and suffering in Segal v. City of New York, for less than 10 seconds of pre-death consciousness, appears to break new legal ground.

Here are the other important appellate court New York injury cases ruling on brief periods of pre-death pain and suffering (none of which dealt with less than a couple of minutes of pain and suffering):

  • Glaser v. County of Orange (2008) – $350,000 for 2-3 minutes after a truck’s axle struck decedent in a car accident
  • Givens v. Rochester City School District (2002) – $300,000 for five minutes of pain after decedent was stabbed and he then lost consciousness and was pronounced dead within the hour
  • Gersten v. Boos (2008) – $350,000 for 5-10 minutes of pain after a car accident and some indications of responsiveness while in a coma over the next 11 days before death
  • Ramos v. Shah (2002) – $450,000 for a day of pain from dehydration and some level of consciousness in a coma for several days before death
  • Bennett v. Henry (2007) – $400,000 for about 20 minutes of pain from a pedestrian knockdown car accident before death was pronounced 10 hours later

No prior reported appellate decision has sustained an award for mere seconds of pre-death pain and suffering. Our review of the record and conversations with attorneys in the Segal case indicates that it was superlative trial and appellate advocacy that’s responsible for this stunning result. Trial counsel Alan M. Greenberg and appellate counsel Jay Breakstone presented this case to the jury and the judges in such a fashion as to convince them that Mrs. Berger had in fact been aware of what was happening to her and felt pain as she died.

The key was to present sufficient factual evidence to give the jury a legal basis to award the damages and that’s just what the appeals court stated was done. Once there was a legal basis for the jury to award damages, then, the lawyers urged and the jurors judges agreed, $350,000 was not an unreasonable sum and the amount should not be (and was not) disturbed.

On March 6, 1997, Louis Ferrigno, a 29 year old carpenter, was driving on a county road in New York when a large tree fell onto his car and crushed it causing him severe head and neck injuries.

Ten years later his case against the county for negligence came to trial. His claim was based on the fact that the tree was diseased and decayed and the county either knew about it or should have known about it and in either case should have removed the tree so that it would not be a hazard.

The jury found for the plaintiff on liability and then proceeded to award him $2,600,000 for his pain and suffering damages ($2,000,000 past, $600,000 future).

On appeal, this week, the court in Ferrigno v. County of Suffolk upheld the liability verdict. In the decision, there was a discussion of the law on negligence as to roadside trees falling and whose responsibility that is and why. In doing so, the court cited prior cases and discussed the facts in this case.

But as to the damages verdict, the appeals court only stated that the past pain and suffering verdict should be reduced to $750,000 and then concluded with these meaningless words:

The damages awarded to the plaintiff for past pain and suffering are excessive to the extent indicated herein, as they deviate materially from what would be reasonable compensation (see CPLR 5501 [c]).

That’s it. Nothing about what the injuries were. Just a statement of the amounts the jury awarded for past and future pain and suffering and the amount for past pain and suffering that the appellate court felt was proper but not a clue as to what the young man went through insofar as physical injuries, no citations to case precedent as to damages and no indication why the court felt the $2,000,000 past pain and suffering verdict should be reduced to $750,000.

Failing to give the public facts upon which appellate courts reach their decisions as to pain and suffering damages is unfair both to the lawyers who rely upon the appellate court decisions for precedent and to non-lawyer citizens (by whose tax dollars, after all, the judges are hired and paid). We are all entitled to know how these august bodies make their decisions. 

And in this case, we were entitled to know why the judicial panel reduced a jury’s $2,000,000 verdict for pain and suffering to $750,0000. This absence of information must change.

For the record, as we lawyers say, here’s what Mr. Ferrigno went through:

  • extreme pain and fear of imminent death while pinned inside crushed car waiting to be extricated by "jaws of life" tools and flown by helicopter to hospital
  • eight inches of staple stitches across head
  • skull fracture
  • permanent neck pain and migraine headaches and

          plaintiff sustained a compression fracture of his cervical spine at C7

And the defense argued that the $2,000,000 was excessive and that Mr. Ferrigno’s injuries were not so bad, because:

  • plaintiff did not undergo any surgery
  • loss of work and confinement to home was only six months
  • the C7 compression fracture had healed (according to the American Academy of Orthopedic Surgeons many compression fractures are minor and need only six weeks of immobility in a cervical collar)
  • physical therapy was needed for only three months
  • plaintiff was only treated by a physician seven times in the years after the accident
  • plaintiff was out of work for only six months and made no claim for future loss of earnings (indicating his injuries were not permanently disabling)

So now you know the facts about the injuries but we still don’t know:

  • which ones were important to the appeals court,
  • what if any case law precedent was relied upon and
  • how this case insofar as damages is concerned should be used in the future by lawyers and injured people to evaluate injury claims that are similar.

The appeals courts must stop refusing to explain their reasoning in cases that address an increase or decrease in jury verdict pain and suffering damage awards.