Opinion
No. 28683/2003.
2010-05-21
Janie UTSEY, Plaintiff v. CITY OF NEW YORK, Defendant.
Ari Michael Gross Esq., Dinkes & Schwitzer, New York City, for Plaintiff. Joseph E. Mohbat, Senior Counsel, New York City Department of Law, Bronx, for Defendant.
Ari Michael Gross Esq., Dinkes & Schwitzer, New York City, for Plaintiff. Joseph E. Mohbat, Senior Counsel, New York City Department of Law, Bronx, for Defendant.
LUCY BILLINGS, J.
I. INTRODUCTION
Despite the tightening of grounds for recovery for injuries from potholes in city streets, ways remain to establish the city's liability for creating a hazardous pothole through its repair work on the area. To be sure, as in this action, the injury and an inspection of the site even immediately afterward typically occur many months after any work by the city at the site, so that its condition then may not show its condition immediately upon completion of the city's work. The evidence in this action, however, points to various ways plaintiff could show that the city's repair of the roadway immediately caused a dangerous condition, 17 months before her injury and observations of the injury site. Yarborough v. City of New York, 10 NY3d 726, 728 (2008); Oboler v. City of New York, 8 NY3d 888, 889–90 (2007); Kushner v. City of Albany, 7 NY3d 726, 727 (2006); Bielecki v. City of New York, 14 AD3d 301, 302 (1st Dep't 2005).
As discussed more fully below, first the repair crew supervisor revealed that the repair proceeded quickly, in a rush, without two steps that an engineer found essential: (a) sealing the surface of the filled hole to the surrounding surface and (b) waiting or returning to ensure that the repaired area dried and hardened or barricading it to protect it from traffic at this busy site. Second, the supervisor described photographs of the hole when plaintiff fell into it, depicting a gap in the surface at the perimeter of the filled hole, as how it appeared when his crew finished its repair. Insofar as he equivocated that it did not appear exactly the same, he never described any difference.
The above omissions in the repair work permitted two inferences, which the engineer substantiated, even though he did not observe the site until 17 months after the repair. First, immediately upon the repair crew's rapid departure, vehicular or pedestrian traffic depressed the wet, soft asphalt filler, so that it sank in from the hole's perimeter. Second, whether or not such a depression formed, the engineer explained how the undeniable gap at the hole's perimeter 17 months later, even if the gap widened or deepened over that time, would not have formed at that very location unless left there by the repair.
This evidence emerged when this action proceeded to a trial before a jury April 22–29, 2008. On April 29, 2008, the jury rendered a verdict finding that defendant City of New York created a dangerous condition in the roadway at or near the intersection of Westchester Avenue and Morrison Avenue, Bronx County, immediately upon completion of defendant's work there May 17, 2001, which injured plaintiff October 17, 2002. The jury further found that plaintiff was not negligent in contributing to her injury. The jury awarded her $1,000,000.00 for past pain and suffering, $500,000.00 for past medical expenses, $1,500,000.00 for future pain and suffering over ten years, and $800,000.00 for future medical expenses over eight years.
Defendant moves to set aside the verdict and award a judgment in defendant's favor dismissing the action or to set aside or reduce the verdict and order a new trial on plaintiff's comparative fault and on damages. C.P.L.R. §§ 4404(a), 5501(c). For the reasons explained below, the court grants defendant's motion to the extent of reducing the award for past medical expenses, but otherwise denies the motion. Id.
II. SUMMARY OF THE EVIDENCE
Plaintiff testified that on October 17, 2002, while walking in the crosswalk at Westchester and Morrison Avenues, she stepped into a hole in the roadway that caused her to trip and fall to the pavement. She did not observe the hole before her foot caught in it.
Defendant does not dispute that plaintiff's injuries from her fall required two surgeries: (1) open reduction and internal fixation for a severely comminuted fracture of her left femur and (2) a right hip replacement. The testimony of plaintiff and her orthopedic expert and documentary evidence established that her combination of injuries caused and continued at the time of the trial to cause her severe pain and suffering that diminished her enjoyment of life.
When plaintiff fell onto the roadway, “nothing hurt me like that in my life.” Transcript of Proceedings at 38 (Apr. 22, 2008). She could not lift herself from the ground. When two men picked her up, her left leg was in such pain she “was seeing stars.” Id. at 39. When she was placed in the ambulance that arrived, “it hurt so bad I could hardly explain .... because I couldn't stand no one to even touch the leg.” Id. at 40.
In addition to the testimony regarding her fall and injury, plaintiff presented evidence of her extensive treatment, resulting pain and restrictions on functioning, and the persistence of that pain and those functional limitations. Although plaintiff was age 77 when injured, before her injury she lived entirely independently, shopping, cooking, and cleaning her home herself; attending church twice per week; visiting her family in New Jersey and South Carolina; and travelling on her own. A. Medical Evidence
Plaintiff's orthopedic surgeon, Louis Rose M.D., who had treated plaintiff before October 17, 2002, confirmed that plaintiff's ambulation was unrestricted, and she travelled on her own, before then. Dr. Rose examined and treated plaintiff immediately after her injury on that date and continuously afterward. He diagnosed her with a “very severe,” Tr. at 242, 251 (Apr. 28, 2008), and “extremely painful,” id. at 251, displaced, comminuted fracture of her left femur that extended into her left knee joint. The femur's shaft “jammed into that area,” id. at 250, “right above the joint,” id. at 246, permanently damaging the cartilage there, as it does not regenerate. Since the femur is the largest bone in a human body, he concluded that a significant force must have caused her fracture and attributed it entirely to her fall.
The fracture and its multiple fragments further disrupted the bones' normal alignment. Plaintiff therefore spent the first four days of her hospitalization in traction to minimize additional shortening of the fragments, a painful process as the fragments move during the traction. Although she was administered the strongest narcotic pain medication, it did not eliminate her pain.
Four days after plaintiff's hospital admission, Dr. Rose attempted to reconstruct her thigh and knee through surgery. After realigning the fracture fragments through open reduction and reconstructing the knee joint's “primary architecture,” he stabilized the area through internal fixation, id. at 252, “using various bone-holding clamps ... to actually manipulate the end of the bones around the fractured area.” Id. at 253. He also reamed her bone by a drilling process, to carve out a channel through the inner portion at the end of the femur, and to fit in a metal plate with several screws, one “very large,” through the plate, biting into various portions of her bone, compressing the fracture or keeping it static. Id. at 256.
Before plaintiff's injury, Dr. Rose found minimal degeneration in her left leg due to age. He found that her injury, however, caused the degeneration to progress rapidly, which increased the pain from the injury in her left leg. He further diagnosed plaintiff with progressive arthritis related to the injury, which he treated with anti-inflammatory medication, heat, muscle strengthening exercises, and a walker or cane to unload the arthritic joint.
Dr. Rose also attributed plaintiff's second surgery, a right hip replacement in 2007, directly to her October 2002 injury. X-rays of her right hip before 2002 showed insignificant degeneration there as well. Dr. Rose explained that, after plaintiff's October 2002 injury, the significant interference with her left leg's joint caused plaintiff to transfer her limited ambulation and thus her weight to her right leg, place more pressure and force on her right leg and hip, wear down the cartilage in the hip excessively, and develop increasing pain there. The hip replacement also involved a reaming of plaintiff's femoral canal, in the cup of her hip, where other metal components, a femoral ball or head and a femoral neck were inserted into a metal cup with a plastic liner, followed by suturing the capsule and external rotators back into place, as well as the rest of the surgical wound.
Finally, Dr. Rose testified that, due to the fracture extending into plaintiff's left knee, traumatically inducing osteoarthritis there, plaintiff required a left knee replacement. The need for two more surgical procedures, first to remove the current hardware, and then, after the area heals, to align the knee replacement by drilling a hole and placing a rod into the inner portion of the femur, would increase the complexity of the surgery. Dr. Rose projected that the knee replacement would reduce plaintiff's pain, but that plaintiff still would experience intermittent pain, and did not project that replacing this second joint would improve her functioning, because joint replacement alters gait and causes abnormal muscle function.
Plaintiff never had returned and never will return to her normal functioning before October 17, 2002. As detailed below, her October 2002 injury has dramatically curtailed her ability to ambulate and to perform basic daily activities, a condition which, according to Dr. Rose, will only deteriorate further over the remainder of her life. B. Lost Enjoyment of Life
After plaintiff's injury, her initial hospitalization October 17, 2002, lasted approximately ten days, followed by three months of painful rehabilitation at another facility, progressing to a wheelchair, then to a walker, and eventually to a cane to assist her in ambulation. At the hospital, plaintiff continued to be transported by a stretcher or wheelchair. While she was using a wheelchair, she needed to extend her left leg parallel to the ground and “keep it stretched out all the way,” because it would not bend. Id. at 37. Even at the rehabilitation facility, she could not tolerate any touching of her leg. Facility personnel used a mechanical lift to move plaintiff out of her bed, carried her to the bathroom, and helped her in the bathroom in the daytime, while at night she needed to use a bedpan. Any movement around the facility was painful to her.
Eventually plaintiff's left leg was placed in a hinged brace to disperse force and enable plaintiff to begin partial weight bearing on the leg. Because of her limited range of motion around her thigh, she underwent physical therapy to develop her upper body strength and enable her to use a walker.
When plaintiff left the rehabilitation facility, she travelled home by ambulance. At home, through the time of the trial, in contrast to her life before her injury, plaintiff could not care for any of her basic daily needs herself: she could not dress, bend down to tie her shoes, climb in and out of a bathtub, or shower herself. An aide shopped and cooked for plaintiff, washed her clothes, and cleaned her home. Plaintiff could walk only short distances, with a shuffling gait, and only with an assistive device. An ambulette transported her to Dr. Rose's office. She attended church only once after October 2002, transported by her brother. Her testimony revealed that church had been an important social environment for her before then, but afterward she could not rise from her chair and circulate among the congregation. Plaintiff also continued to need medication to reduce her pain.
III. LEGAL SUFFICIENCY OF THE EVIDENCE REGARDING DEFENDANT'S LIABILITY
Defendant claims plaintiff failed to sustain her burden to prove that defendant's repair of the roadway at Westchester and Morrison Avenues with an asphalt patch May 17, 2001, immediately caused a dangerous condition, to establish defendant's liability for those acts. Yarborough v. City of New York, 10 NY3d at 728;Oboler v. City of New York, 8 NY3d at 889–90;Kushner v. City of Albany, 7 NY3d at 727;Bielecki v. City of New York, 14 AD3d at 302. The court may not set aside the jury's verdict on any issue based on legal insufficiency of the evidence unless no valid line of reasoning and permissible inferences from the evidence presented would lead rational jurors to the conclusion they reached. Stephenson v. Hotel Empls. & Rest. Empls. Union Local 100 of AFL–CIO, 6 NY3d at 271–72;Cohen v. Hallmark Cards, 45 N.Y.2d 493, 499 (1978); Woodie v. Azteca Intl. Corp., 60 AD3d 535, 536 (1st Dep't 2009); Sow v. Arias, 21 AD3d 317 (1st Dep't 2005). The evidence supporting the verdict must be so lacking that the jury's findings must have been based purely on conjecture. Legal sufficiency of the evidence is a question of law for the court. See Cohen v. Hallmark Cards, 45 N.Y.2d at 498;Sow v. Arias, 21 AD3d 317. Setting aside a verdict based on legal insufficiency of evidence will result in a judgment of dismissal. Cohen v. Hallmark Cards, 45 N.Y.2d at 498;Smith v. Au, 8 AD3d 1, 2 (1st Dep't 2004).
Specifically, defendant maintains plaintiff's expert in engineering testified, at most, that defendant's negligent repair of the roadway area created the potential for the repaired area to become a hazard. Insofar as plaintiff's engineer acknowledged that defendant's work simply resulted in the roadway surface's deterioration through extended use, and thus a hazardous condition developed after the repair, rather than it creating a hazardous condition immediately upon completion of the work, such evidence would not support defendant's liability. Yarborough v. City of New York, 10 NY3d at 728;Oboler v. City of New York, 8 NY3d at 889–90;Ocasio v. City of New York, 28 AD3d 311 (1st Dep't 2006); Bielecki v. City of New York, 14 AD3d at 302. Moreover, defendant points out that, even if plaintiff's engineer concluded that defendant negligently repaired the roadway, creating an immediate hazard, he lacked any basis for such a conclusion, because he relied on his inspection and on photographs taken of the area after plaintiff's fall, more than 17 months after the repair. Gilson v. Metropolitan Opera, 15 AD3d 55, 59 (1st Dep't 2005), aff'd, 5 NY3d 574 (2005); Machado v. Clinton Hous. Dev. Co., Inc., 20 AD3d 307, 308 (1st Dep't 2005); Budd v. Gotham House Owners Corp., 17 AD3d 122, 123 (1st Dep't 2005); McGarvey v. Bank of NY, 7 AD3d 431, 432 (1st Dep't 2004). A. Testimony by Defendant's Employee Carlos Sanchez
Defendant overlooks the import of the testimony by defendant's own employee, Carlos Sanchez. He took part in the repair of the hole plaintiff later fell into and was the only witness who observed it immediately after the repair May 17, 2001. He and his two crew members whom he supervised repaired the hole in ten minutes, “in a rush to move on” to the many other sites assigned to the crew that day. Tr. at 105 (Apr. 23, 2008). In those ten minutes, the crew swept and cleaned out the entire inner surface of the hole, spread asphalt compound inside the hole, filled it with asphalt, compacted and tamped down the asphalt in the hole, and swept again, and Sanchez inspected the repair. In fact his further testimony, that he typically repaired approximately 75 potholes per day, suggested that the time taken for the hole plaintiff fell into may have been even less than a rushed ten minutes. Had he taken that time on 75 potholes, he would have worked more than 12 hours May 17, 2001, without even accounting for the time to travel between the potholes.
Although Sanchez testified that upon completion of the repair, he found the area “level, clean and safe,” only the label “safe” negates a hazard, id. at 84, and whether the area was in fact safe was the jury's determination, not his. E.g., People v. Ingram, 2 AD3d 211, 212–13 (1st Dep't 2003); Mariano v. Schuylerville Cent. School Dist., 309 A.D.2d 1116, 1117–18 (3d Dep't 2003); Fortunato v. Dover Union Free School Dist., 224 A.D.2d 658, 659 (2d Dep't 1996); Franco v. Muro, 224 A.D.2d 579 (2d Dep't 1996). See People v. Hicks, 2 NY3d 750, 751 (2004); People v. Dallas, 47 AD3d 725, 726 (2d Dep't 2008). At no point did he testify that the surface was free of crevices or gaps. Instead, other portions of his testimony revealed an immediately defective, hazardous condition.
First, in his deposition testimony read at trial, Sanchez looked at three photographs in evidence at trial, identified by plaintiff's trial testimony as depicting the hole when plaintiff fell into it, 17 months after its repair. Exs. 2–4. He described those photographs as also depicting “how the area looked after [his] crew ... worked there on May 17th, 2001,” Tr. at 86 (Apr. 23, 2008): “After it's repaired,” id. at 88, “after [his] crew finished work.” Id. at 87. Those photographs showed, as described by plaintiff's engineer and Sanchez himself, a distinct gap in the surface posing a tripping hazard at the perimeter of the repaired area.
While at trial Sanchez described these photographs and another photograph, from a closer view, Ex. 1, of the hole when plaintiff fell in it, as “not in the same condition” as when he finished his work, Tr. at 84 (Apr. 23, 2008), “not exactly the way we left it,” id. at 91, he never specified how the condition had changed. In fact, he testified at trial that the condition in October 2002 depicted by the photographs “looks like it's been there for a while,” id., testimony that was only consistent with his deposition testimony read at trial, that the hole in the October 2002 photographs appeared “fixed for a while.” Id. at 88.
Sanchez further testified that, after his crew packed the asphalt into the hole, the crew did not seal the filled hole with more asphalt compound or any other sealant, “used to bind old asphalt with new asphalt” and fill in gaps between the top surface of the asphalt filler and the surrounding roadway. Id. at 80. See id. at 93. He acknowledged that the close-up photograph, Ex. 1, depicted an unsafe gap, a “tripping hazard” that “should have been filled in.” Tr. at 93 (Apr. 23, 2008). Again he did not explain if or how that depiction differed from the area's appearance May 17, 2001, but instead acknowledged that, “If you don't fill in a gap at the time you do the work, that's going to remain a gap ... indefinitely.” Id. at 100. He also admitted that the asphalt filler required up to 20 minutes to dry and cure, but he and his crew did not remain at the repair site “to see if it sealed up and dried up” and never returned over the next 17 months to check it. Id. at 98.
Finally, Sanchez repeated that potholes such as the one he worked on and plaintiff fell into were “tripping hazards,” id. at 78, so when he worked on them he was required to “make sure” he did not “leave any holes or gaps for people to trip.” Id. at 79. If he or his crew “left a gap ... by not filling it in,” it “would be a tripping hazard.” Id. at 91. See id. at 109.
Defendant attempted to elicit different answers from Sanchez compared with his deposition testimony, to explain that the October 2002 photographs showed the hole as his crew had filled it, but with wear and tear. It was the jury's prerogative, however, to weigh the credibility of this sparse explanatory testimony, against his deposition and other trial testimony that was consistent with his deposition, and to reject the former in favor of the latter. Rivera v. 4064 Realty Co., 17 AD3d 201, 202–203 (1st Dep't 2005); Jackson v. Young, 226 A.D.2d 230, 231 (1st Dep't 1996); People v. Rivera, 281 A.D.2d 702, 703 (3d Dep't 2001). See Maskantz v. Hayes, 39 AD3d 211, 214–15 (1st Dep't 2007); Bota v. Kaminsky, 299 A.D.2d 259 (1st Dep't 2002); Jamal v. New York City Health & Hosps. Corp., 280 A.D.2d 421, 422–23 (1st Dep't 2001); People v. Toland, 2 AD3d 1053, 1055 (3d Dep't 2001). The jurors who see and hear the witnesses are uniquely capable of assessing the “memory, motive, mental capacity, accuracy of observation and statement, truthfulness and other tests of the reliability of witnesses.” People v. Romero, 7 NY3d 633, 645 (2006). See People v. Vasquez, 186 A.D.2d at 441.
Thus, even accepting defendant's view of the testimony by plaintiff's engineer, plaintiff nonetheless sustained her burden, through Sanchez's testimony, to prove defendant's liability. From his testimony, plus other, corroborating evidence, the jury could infer that his crew's repair with the asphalt patch immediately caused a hazardous condition. B. Corroborating Testimony by Plaintiff's Engineer Joseph Farahnik
Even if plaintiff's engineer did not directly support an opinion that the condition was hazardous in May 2001, his amply supported findings and conclusions regarding the condition in October 2002 are consistent with Sanchez's testimony and do not undermine, but repeatedly reinforce, the jury's conclusion regarding the condition in May 2001. Plaintiff's engineer, Joseph Farahnik, confirmed that the asphalt compound Sanchez's crew neglected to use after filling the hole is to be installed around the edges of the hole, to fill in the gaps there, and, when the compound is not installed, the unfilled gaps create a tripping hazard.
Although Sanchez excused his omission of the asphalt compound on the basis that the pothole abutted the cement surface of a bus stop, Farahnik exposed the weakness of this explanation: the compound binds new asphalt with cement just as the compound binds new asphalt with old asphalt. Moreover, while Farahnik testified that a gap around the filled hole's perimeter, left by failure to install the asphalt compound, grew larger through wear and tear over 17 months, he pointed out that Sanchez's neglect also to monitor the asphalt poured into the hole, until the new asphalt dried and sealed up, created an immediate risk of an enlarged gap or hole. Farahnik explained that, because the edges of the hole were not sealed, vehicular traffic or pedestrians wearing heels that passed over the repaired area at this busy intersection immediately after the repair, before the asphalt filler dried and hardened, immediately created a depression in the asphalt and thus a gap between the depressed filler and the edge of the hole.
Sanchez neither assured that the repaired area dried and hardened, nor barricaded it while it dried, to prevent vehicles or persons from treading over it immediately, before it dried. Sanchez thus left a condition that, with one set of tire tracks or footprints, would immediately be a hazardous enlarged depression.
Finally, Farahnik explained that, because a gap between the asphalt filler and the edge of the hole was undisputedly there in October 2002, when plaintiff fell in it and when the photographs were taken within two weeks afterward, the gap also must have been there when the hole last was repaired before then. Such a gap, right at the perimeter of the hole, never would have developed at that precise location had the repair not left the gap there when the hole was filled. In sum, Sanchez's testimony, supplemented by the photographs and Farahnik's expert explanations, provided the jury a valid line of reasoning, if not more than one line of reasoning, through which the jury permissibly could infer that Sanchez left an immediate hazard.
IV. WEIGHT OF THE EVIDENCE
The court may not set aside the verdict on an issue as against the weight of the evidence, resulting in a new trial on the issue, if the verdict was based on a fair interpretation of the evidence. Lolik v. Big v. Supermarkets, 86 N.Y.2d 744, 746 (1995); Cohen v. Hallmark Cards, 45 N.Y.2d at 499;Yamamoto v. Carled Cab Corp., 66 AD3d 603, 604 (1st Dep't 2009); Woodie v. Azteca Intl. Corp., 60 AD3d 535.See Salter v. St. Preux, 63 AD3d 902, 903 (2d Dep't 2009). The evidence in defendant's favor must have been so overwhelming that, even when all credibility assessments and inferences are drawn against defendant, reasonable, fair minded jurors could not have reached a verdict against defendant. As long as the verdict may be reconciled with a reasonable view of the evidence, plaintiff is “entitled to the presumption that the jury adopted that view.” Zhagui v. Gilbo, 63 AD3d 919, 920 (2d Dep't 2009). See Cholewinski v. Wisnicki, 21 AD3d 791 (1st Dep't 2005); Rivera v. 4064 Realty Co., 17 AD3d at 202–203;Price v. Studley, 28 AD3d 1196, 1197 (4th Dep't 2006). For the most part, defendant's claims that the jury's finding of no comparative negligence by plaintiff and awards for pain and suffering and medical expenses are against the weight of the evidence do not dictate disturbing the verdict. C.P.L.R. § 4404(a). A. Plaintiff's Comparative Fault
Plaintiff's uncontradicted testimony, supplemented by the photographs, established that she tripped over a pothole in the crosswalk as she walked across it toward a walk signal. While the weather was sunny and the roadway readily observable, plaintiff's attention focused on the walk signal, to watch whether it changed, and other pedestrians in the crosswalk rushing to catch the bus she had exited. In fact she stepped into the pothole when she stepped aside to avoid them. Although the hole may have been large enough to pose a tripping hazard, it was not a huge, gaping hole.
Insofar as contrary evidence may have suggested that plaintiff was not careful in looking where she was stepping, the jury's function was to resolve such an inconsistency or conflict. Rivera v. 4064 Realty Co., 17 AD3d at 203;Schneider v. Diallo, 14 AD3d 445 (1st Dep't 2005); Bota v. Kaminsky, 299 A.D.2d 259;Richardson v. Cavagnaro & Sons Mach. Corp., 202 A.D.2d 411, 412 (2d Dep't 1994). The jury was free to determine whether or not plaintiff's acts or omissions were negligent and determined they were not. Schneider v. Diallo, 14 AD3d at 446;Kraus v. Caliche Realty Estates, 302 A.D.2d 214, 215 (1st Dep't 2003); Livreri v. O'Connell, 188 A.D.2d 279 (1st Dep't 1992); Richardson v. Cavagnaro & Sons Mach. Corp., 202 A.D.2d at 412.See, e.g., Bruni v. City of New York, 2 NY3d 319, 328 (2004); Shea v. New York City Tr. Auth., 289 A.D.2d 558, 559 (2d Dep't 2001). The evidence of plaintiff's conduct and her failure to detect the hole before tripping over it did not weigh so heavily against the jury's finding and necessarily dictate that her own negligence contributed to her fall, as to warrant a new trial on this issue. Reyes v. City of New York, 63 AD3d 615, 616 (1st Dep't 2009). B. Pain and Suffering
A fair interpretation of the trial evidence also supports the verdict for the pain and suffering plaintiff experienced due to her severe injuries. In fact defendant presented no witnesses who rebutted Dr. Rose's assessment of the severity or duration of her injuries. Kane v. Coundorous, 11 AD3d 304, 305 (1st Dep't 2004); Reed v. City of New York, 304 A.D.2d 1, 9–10 (1st Dep't 2003); Cabezas v. City of New York, 303 A.D.2d 307, 308 (1st Dep't 2003); Martelly v. New York City Health & Hosps. Corp., 276 A.D.2d 373, 374 (1st Dep't 2000). See Mazariegos v. New York City Tr. Auth., 230 A.D.2d 608, 609–610 (1st Dep't 1996); Wiseberg v. Douglas Elliman–Gibbons & Ives, 224 A.D.2d 361, 362 (1st Dep't 1996). The absence of such evidence weighing against plaintiff and in favor of defendant poses an obvious impediment to finding that the evidence weighed so overwhelmingly in defendant's favor that the jury could not reasonably and fairly have reached a verdict favorable to plaintiff. C. Medical Expenses
Defendant further claims plaintiff failed to prove her past and future medical expenses with reasonable certainty. Dr. Rose testified that plaintiff's past two surgeries cost a total of $130,000.00, and her stay at the rehabilitation facility following her fracture and first surgery cost $35,000.00. Plaintiff's evidence of additional past medical expenses included her testimony that she received “therapy” during her first six weeks at home after her injury, without specification of the type of therapy or its frequency, Tr. at 46 (Apr. 22, 2008), and has required a home health aide daily since leaving the rehabilitation facility, without specification of the duration of the aide's visits. At Dr. Rose's calculated rate of $120.00 per hour, a home health aide one hour per day for at least five years, to April 2008, totals approximately $220,000.00. Therefore the record supports no more than $385,000.00 in past medical expenses, rendering the jury's award of $500,000.00 for those damages against the weight of the evidence. E.g., DeVito v. Oi Ying Ho, 25 AD3d 750, 751 (2d Dep't 2006); Karwacki v. Astoria Med. Anesthesia Assoc., P.C., 23 AD3d 438, 440 (2d Dep't 2005). See Flores v. Parkchester Preserv. Co., L.P., 42 AD3d 318, 319 (1st Dep't 2007); Lantigua v. 700 W. 178th St. Assoc ., LLC, 27 AD3d 266, 267 (1st Dep't 2006); Cabezas v. City of New York, 303 A.D.2d at 308;Brewster v. Prince Apts., 264 A.D.2d 611, 617–18 (1st Dep't 1999).
Dr. Rose further testified that the required future knee replacement would cost $65,000.00 and post-operative rehabilitation $35,000.00. Plaintiff's current and future condition over her life expectancy of 8.6 years would require an hour per day of physical therapy at $120.00 per hour and of nursing care at $160.00 per hour, a cost of $102,200.00 per year. The jury's award of $800,000.00 over the span of eight years is well within these costs supported by the evidence and consistent with plaintiff's life expectancy. See Hernandez v. New York City Tr. Auth., 52 AD3d 367, 369 (1st Dep't 2008).
V. MATERIAL DEVIATION FROM REASONABLE COMPENSATION
Defendant also maintains that the awards for past and future pain and suffering materially deviate from reasonable compensation. C.P.L.R. § 5501(c). To set aside a component of the jury's verdict as excessive, the court must analyze awards at the appellate level based on analogous evidence and determine that the current award departs substantially from those benchmarks. Wilson v. City of New York, 65 AD3d 906, 911 (1st Dep't 2009); Urbina v. 26 Ct. St. Assoc., LLC, 46 AD3d 268, 275 (1st Dep't 2007); Morsette v. The Final Call, 309 A.D.2d 249, 256 (1st Dep't 2003); Donlon v. City of New York, 284 A.D.2d 13, 14–15, 18 (1st Dep't 2001).
Nonetheless, in no two actions are “the quality and quantity” of damages, particularly for pain and suffering, identical. Morsette v. The Final Call, 309 A.D.2d at 257;Reed v. City of New York, 304 A.D.2d at 7. Their “evaluation does not lend itself to neat mathematical calculation.” Id. See Morsette v. The Final Call, 309 A.D.2d at 256;Donlon v. City of New York, 284 A.D.2d at 15. The court must exercise caution and not simply substitute the court's view of the evidence for the six fact finders' judgment or modify the harshness of a verdict the court disagrees with, particularly on damages, when the jury's peculiar function is to evaluate damages. Po Yee So v. Wing Tat Realty, 259 A.D.2d 373, 374 (1st Dep't 1999). See New York City Tr. Auth. v. State Div. of Human Rights, 78 N.Y.2d 207, 217 (1991); Mazariegos v. New York City Tr. Auth., 230 A.D.2d at 609;Brown v. Taylor, 221 A.D.2d 208, 209 (1st Dep't 1995); Evans v. St. Mary's Hosp. of Brooklyn, 1 AD3d 314, 315 (2d Dep't 2003).
Absent a benchmark or comparability, reduction of damages does not serve the ends of fairness and evenhandedness. Medina v. Chile Communications, Inc., 15 Misc.3d 525, 531 (Sup.Ct. Bronx Co.2006). In such circumstances, tinkering with the award only flaunts the deference due the jury's assessment of damages and eliminates the fact finders' “peculiar function.” Po Yee So v. Wing Tat Realty, 259 A.D.2d at 374;Weigl v. Quincy Specialties Co ., 190 Misc.2d 1, 5 (Sup.Ct. N.Y. Co.2001), aff'd,1 AD3d 132, 134 (1st Dep't 2003); Medina v. Chile Communications, Inc., 15 Misc.3d at 531.See Weigl v. Quincy Specialties Co., 190 Misc.2d at 8–9,aff'd,1 AD3d at 134.
VI. MAXIMUM REASONABLE COMPENSATION FOR PLAINTIFF'S PAIN AND SUFFERING
It is incumbent on defendant, in seeking to reduce the jury's awards, to cite verdicts, including their fate on appeal, that assess injuries similar to plaintiff's, experienced for comparable periods. Morsette v. The Final Call, 309 A.D.2d at 256;Reed v. City of New York, 304 AD3d at 7; Donlon v. City of New York, 284 A.D.2d at 14, 18;Medina v. Chile Communications, Inc., 15 Misc.3d at 532. While the awards defendant cites are not useless in shedding further light on the factors to be considered when assessing reasonable compensation, the circumstances producing these awards do not delineate the limits of compensation to be awarded by a jury in this venue in 2008, for injuries that parallel plaintiff's suffering.
Only one of those verdicts was in this venue, but that verdict predated the awards here by a decade, and the appellate decision simply affirmed the pain and suffering awards for replacement of both hips. Cooper v. Bronx Cross County Med. Group, 259 A.D.2d 410, 411 (1st Dep't 1999). When an appellate court affirms an award, the affirmance stands only as a determination that the award fell somewhere within the range of awards justified by the evidence and does not indicate that a considerably higher verdict is above the upper limit of that range. Medina v. Chile Communications, Inc., 15 Misc.3d at 532. Thus, even when the court affirms an award for more severe or extensive injuries, neither does it indicate that less severe or extensive injuries do not warrant an equal verdict.
The other decisions defendant relies on found pain and suffering awards inadequate, rather then excessive, and assessed verdicts that predated the awards here by more than eight or nine years. Where the plaintiffs sought to increase the verdict, the courts' determinations are even less instructive than a simple affirmance that does not address adequacy, because in those instances, the determinations are whether the verdicts are minimally adequate, within the lower limit of the range of awards justified by the evidence. Here, the determination is precisely the opposite: whether the verdict is within in the upper limit of the range of justifiable awards. Id. at 534–35.
While one verdict defendant cites was for a hip replacement with complications, including a limp, Iovone v. City of New York, 286 A.D.2d 372, 373 (2d Dep't 2001), and another for a fractured hip and pubic ramus, causing arthritis and a limp, Dooknah v. Thompson, 249 A.D.2d 260, 261 (2d Dep't 1998), after remand, Dooknah v. Thompson, 276 A.D.2d 664 (2d Dep't 2000), a third was for a fractured hip requiring only limited hospitalization and rehabilitation and leaving no residual functional limitations. Kahl v. MHZ Operating Corp., 270 A.D.2d 623, 624 (3d Dep't 2000). In this last action, the plaintiff appealed the trial court's reduction of the jury's verdict. Significantly, the appellate court affirmed the reduction, because it was “according the Supreme Court appropriate deference due to its superior position of being able to observe the evidence first hand and assess its effect.” Id.
None of these awards, although they involved superficially factual similarities to plaintiff's injuries, encompass all or even most of her various combined injuries, with such extensive effects on the specific individual. See Medina v. Chile Communications, Inc., 15 Misc.3d at 532. Plaintiff's injuries entailed a reconstruction of her left thigh and knee, a right hip replacement, and the need for a left knee replacement. They transformed her independent life to a life of extremely limited ambulation, with assistance, and almost total dependence on assistance to meet her daily needs. The above awards are thus of limited utility in providing benchmarks for evaluating plaintiff's injuries.
In contrast, awards to plaintiffs who suffered severe physical injuries that caused lingering restrictions on functioning demonstrate that the awards to plaintiff are within a reasonable range of awards for past and future pain and suffering. Reyes v. City of New York, 63 AD3d at 616;Urbina v. 26 Ct. St. Assoc., LLC, 46 AD3d at 275;Lewis v. Port Auth. of N.Y. & N.J., 8 AD3d 205, 206 (1st Dep't 2004). See Tonaj v. ABC Carpet Co., Inc., 43 AD3d 337, 338–39 (1st Dep't 2007); Hensley v. Lawrence, 40 AD3d 1375, 1376–77 (3d Dep't 2007). Awards of $1,000,000.00 each for past and for future pain and suffering were reasonable in this venue three years previously, for a fractured tibia and fibula requiring open reduction and internal fixation and fractured facial bones, all requiring a far shorter hospital stay than plaintiff's multiple hospitalizations here, and without any facts as to future functional limitations. Singh v. Gladys Towncars Inc., 42 AD3d 313, 314 (1st Dep't 2007). An award of $1,500,000.00 for past pain and suffering was reasonable in this venue six years previously, for a comminuted fractured femur and facial lacerations and abrasions, leaving a shortened leg, scars, and psychological effects. Lopez v. Gomez, 305 A.D.2d 292, 293 (1st Dep't 2003). Over nine years before plaintiff's verdict here, $2,300,000.00 for past and $2,500,000.00 for future pain and suffering were reasonable in this venue for a 12 year old's comminuted fractured femur, requiring two surgeries within a week, a subsequent surgery, and likely future surgery, and leaving substantially limited range of motion and chronic pain. Carl v. Daniels, 268 A.D.2d 395 (1st Dep't 2000).
The jury here awarded plaintiff $1,000,000.00 for five and one half past years and $1,500,000.00 for ten future years. The longer future period will not include the excruciating pain immediately after her injury, when transported to and around the hospital and in traction, but, discounting that initial recovery period, plaintiff at the trial was no more improved than during the five preceding years and was expected only to deteriorate over the future. Just as the past had entailed, the future promised another two surgeries followed by rehabilitation, continued pain, continued progression of the arthritis related to her injury, an inhibited gait, and deteriorating muscle function in both lower extremities. Therefore, despite plaintiff's advanced age, the future award is reasonably related to the past award, as well as to her prognosis and her life expectancy. Neither award for pain and suffering exceeds reasonable compensation for plaintiff's multiple related injuries from which she has never recovered.
VII. CONCLUSION
In sum, the trial evidence was legally sufficient to support defendant's creation of and hence its liability for the hazardous condition that caused plaintiff's injury in the crosswalk on a city roadway. A fair interpretation of the evidence also supports her lack of fault. Therefore the court denies defendant's motion insofar as it seeks to set aside the jury's verdict on liability and comparative fault.
The jury's verdict on past and future damages, based on plaintiff's largely uncontroverted evidence of those damages, does not so exceed amounts supported by a fair interpretation of the evidence as to require disturbing the jury's determination. Nor was the jury's $1,000,000.00 award for five an one half years of past pain and suffering or $1,500,000.00 award for ten years of future pain and suffering of continuing severity so excessive as to materially deviate from reasonable compensation. Therefore the court denies defendant's motion to set aside or reduce the verdict for plaintiff's past and future pain and suffering and for her future medical expenses. C.P.L.R. §§ 4404(a), 5501(c).
The award for plaintiff's past medical expenses, however, is against the weight of the evidence and set aside. The court orders a new trial on these damages only, unless plaintiff stipulates to reduce the verdict for this component of damages to $385,000.00. DeVito v. Oi Ying Ho, 25 AD3d at 751;Karwacki v. Astoria Med. Anesthesia Assoc., P.C., 23 AD3d at 439–40.See Flores v. Parkchester Preserv. Co., L.P., 42 AD3d 318;Lantigua v. 700 W. 178th St. Assoc., LLC, 27 AD3d at 267;Brewster v. Prince Apts., 264 A.D.2d at 618.