Opinion
November 6, 1995
Appeal from the Supreme Court, Kings County (Garry, J.).
Ordered that the judgment is modified, on the facts and as a matter of discretion, by deleting the provision thereof which awarded damages to the plaintiff for past and future pain and suffering, and substituting therefor a provision severing the plaintiff's causes of action to recover damages for past and future pain and suffering, and granting a new trial with respect thereto; as so modified, the judgment is affirmed, with costs to the appellant, unless within 30 days after service upon him of a copy of this decision and order, with notice of entry, the plaintiff shall serve and file in the office of the Clerk of the Supreme Court, Kings County, a written stipulation consenting to reduce the verdict as to damages for past and future pain and suffering from the sum of $375,000 to the sum of $150,000 (less 10%, representing the plaintiff's share of the fault in the happening of the accident) and to the entry of an appropriate amended judgment in his favor; in the event that the plaintiff so stipulates, then the judgment, as so reduced and amended, is affirmed, without costs or disbursements, and the matter is remitted to the Supreme Court, Kings County, for the entry of an appropriate amended judgment accordingly.
The 76-year-old plaintiff fell and was injured while riding as a passenger on the defendant's bus. The plaintiff suffered a torn meniscus of the left knee among other injuries. At the time of trial, he continued to suffer from pain in his knee at night and when he put his full weight on it. He was also developing arthritic changes due to the injury.
The defendant contends, among other things, that the trial court erred by instructing the jury, pursuant to PJI 2:162, regarding the additional duty of care and aid imposed on a common carrier toward a disabled passenger. Throughout the trial, the plaintiff had insisted that he was not disabled or infirm prior to the accident, despite the fact that he was 76 years old, and weighed 330 pounds (he was 5 feet, 11 inches tall). The bus driver, the defendant's employee, testified that the plaintiff had gotten on the bus carrying a cane or walking stick, and the defense attempted to prove that the plaintiff had fallen due to a pre-existing arthritic knee condition. The plaintiff testified that he had been carrying a pipe for protection, not a cane or walking stick, and insisted that he had no knee condition prior to the accident. Thus, the defendant argues that the plaintiff's position at trial, that he had no disability or infirmity, was a judicial admission, and so, the charge pursuant to PJI 2:162 should not have been given. We disagree. Under the circumstances of this case, the plaintiff's testimony at trial did not constitute a formal judicial admission, and the plaintiff could rely on the defense witnesses and evidence to put the issue of any alleged pre-existing disability or infirmity before the jury (see, Skelka v Metropolitan Tr. Auth., 76 A.D.2d 492).
However, we find that the damage award for pain and suffering was excessive to the degree indicated, in that it materially deviated from what would be reasonable compensation under the facts and circumstances of this case (see, CPLR 5501 [c]; Hulsen v Morrison, 206 A.D.2d 459).
We have examined the defendant's remaining contentions, and find them to be without merit. Mangano, P.J., Balletta, Rosenblatt and Ritter, JJ., concur.