Hargis v Sayers

[*1] Hargis v Sayers 2005 NY Slip Op 51520(U) [9 Misc 3d 1113(A)] Decided on September 26, 2005 Supreme Court, Jefferson County McGuire, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 26, 2005
Supreme Court, Jefferson County

Delbert Hargis, JR., Individually and as Parent and Natural Guardian of DE'ANDRE HARGIS, Plaintiff,

against

Phyllis J. Sayers, Defendant.



02-1350



David B. Geurtsen, Esq.

Attorney for Plaintiff

John A. Panzone, Esq.

Attorney for Defendant

Joseph D. McGuire, J.

Plaintiff has applied for an order setting aside a jury verdict regarding damages (CPLR 4404).

Pursuant to CPLR 2219, the Court has considered the following: Notice of Motion, dated September 1, 2005; the Affidavit of David B. Geurtsen, Esq., dated September 1, 2005; Memorandum of Law of September 1, 2005; Affidavit of John A. Panzone, Esq., dated September 14, 2005, Exhibits submitted therewith; Memorandum of Law of Defendant's Attorney; Reply Memorandum of Law, dated September 19, 2005.

The injured Plaintiff is De'Andre Hargis, an infant who was run over two times by Defendant's automobile while he was playing in or near the driveway of his home. A jury trial was conducted, at which a verdict in Plaintiff's favor on the issue of liability and negligence was directed by the Court. Submitted for consideration by the Jury were the issues of pain and suffering, including loss of enjoyment of life, from the date of the accident on July 15, 1999, to the date of the verdict on August 18, 2005, and from that date forward for future pain and suffering. On the date of trial, the child was eight years old, having been born March 8, 1997.

The Jury returned a Verdict awarding the infant zero dollars for past pain and suffering, and zero dollars for future pain and suffering.

A damage award by a jury must be set aside if it deviates materially from what would be reasonable compensation (CPLR 5501[c]), which rule is applicable to the trial court as well as to the appellate courts (see Inya v. Ide Hundai, Inc., 209 AD2d 1015, [4th Dept 1994]). If the trial court sets aside the verdict, it may order a new trial on the issue of damages only (CPLR 4404(a)). [*2]

The former rule permitting a set aside of a verdict only when it 'shocks the conscience' is no longer applicable (see Prunty v YMCA of Lockport, 206 AD2d 911), and it has been said that material deviation from reasonableness is a lesser standard to permit Court involvement in setting aside a verdict, with the courts given greater power (see Consorti v Armstrong World Industries, Inc., 72 F3rd 1003, 1013). The material deviation standard has received extensive discussion (see Gasperini v Center for Humanities, Inc. 518 U.S. 415; Keenan v Waldorf Carting Co. 2004 WL 1961592).

In determining claims of inadequate damages or excessive damages, the trial courts often review prior verdicts in similar cases to provide guidance in determining reasonableness (see Gasperini , 518 U.S. 415; Keenan, 2004 WL 1961592). "Because personal injury awards, especially those for pain and suffering, are not subject to precise quantification . . . [courts] look to comparable cases to determine at what point an award deviates materially from what is considered reasonable compensation" (Karney v. Arnot-Ogden Memorial Hospital, 251 AD2d 780, 782, lv dismissed 92 NY2d 942; Rappold v. Snorac, Inc., 289 AD2d 1044, [4th Dept 2001]).

"Review of the adequacy of a damage award entails its comparison to awards in similar cases as well as consideration of various factors, including the life-threatening nature of the injuries, the length of hospitalization, surgeries required, complications experienced, medication needed to stabilize the patient and relieve pain, post-confinement convalescence, rehabilitative efforts and the success of treatment (cites omitted)" (Edwards v. Stamford Health Care Society, Inc., 269 AD2d 825, 827).

In that regard, large sums have been awarded for a fractured femur, with other injuries, such as $1,500,000.00 (Lopez v. Gomez, 305 AD2d 292), or $2,300,000.00 for a 12 year old with a fractured femur and several surgeries (Carl v. Daniels, 268 AD2d 395), and even $500,000.00 for a 12 year old with a broken femur (Ellis v. City of New York, 281 AD2d 177).

Amounts have been rejected by the courts as inadequate, such as $6,000.00 for a leg fracture with closed reduction in Wayne County (Simmons v. Dendis Construction, Inc., 270 AD2d 919 [4th Dept 2000]); $7,000.00 for a fractured foot of a pedestrian run over by a motor vehicle (Quigley v. Sikora, 269 AD2d 812 [4th Dept 2000]). In fact, $50,000.00 for pain and suffering for a broken femur and ankle was deemed insufficient (Keenan, 2004 WL 196 1952).

Femur fracture of infants have resulted in sustained pain and suffering awards of $100,000.00 for a ten year old in Albany County (Clemente, 1998 WL 953567); $50,000.00 for a ten year old with a fractured femur in Kings County (Jean-Pierre, 2001 WL 1782002); and $87,883.00 for a seven year old pedestrian in Erie County (Burruss, 1997 WL 914491). An eight year old, nine years of age at trial, who suffered a supra condylar fracture of her femur, was deemed injured to the extent of $100,000.00 (Williams v. Williams, 226 AD2d 710). A seven year in a body cast, similar to the one here, was found to have suffered for the fractured femur to the extent of $80,000.00 for past pain and suffering and $10,000.00 for future pain and suffering seven years ago (Faulise v. Trout, 254 AD2d 755 [4th Dept 1998]). In another "body cast" case, a court felt anything less than $75,000.00 would have been inadequate, nearly 20 years ago (Stiso v. Picarello, 120 AD2d 516).

There is no case that is identical to the matter before the Court, in terms of the injuries or the events that caused them. Many of the referenced cases involved additional injuries, some [*3]additional surgeries. None were pointed out to have involved the additional skin scraping or stone imbedding or tire burns and permanent scarring as revealed in the present case. None of the foregoing appeared to involve an infant looking up at a tire on its body, and then having the tire run over the child again. Some of the foregoing cases did involve shortening of leg length, for however brief of time, and limping, for however brief of time. Some of the foregoing cases were in more urban areas, but many were in similarly rural counties.

Nonetheless, no case has been found in which there was a zero award for the injury. With an infant of tender years, it is especially difficult for that person to articulate the pain and suffering undergone. Similarly, when the incident is said to have occurred at age two and one-half (2 1/2), recollection of the events would be near impossible. Such recollection, however, should not serve to prevent the Court from making a suitable and justifiable award for the bodily insult suffered by the child.

Trial testimony indicates that the incident itself involved a car stopping on the child who was under the wheel, the wheel was on his chest, and he was facing up. When medics arrived, they were working on the child. There was testimony of screaming and crying at the time of the incident and when the ambulance arrived. There was testimony that the child spent one week in the hospital, and kept his leg bent and didn't straighten it for several days after the initial injury, resulting in an x-ray revealing an oblique fracture of the left femur. The child then underwent an operation, was placed under anesthesia and was placed in a partial body cast. The cast required the child to lie on his stomach or back and he needed to be transported. There was a bar attaching the legs of the cast together. The child underwent an additional x-ray, and the cast was removed some five weeks after it was placed on the child. Skin care for the child was required; and range of motion exercises, so the child could gradually begin walking. Stiffness in his leg was observed, and the child needed to be taught to walk again. Medical testimony indicated the observation of discomfort. One leg was six millimeters longer than the other some three years after the accident. Medical testimony was that the child suffered medical contusions and abrasions over many areas of his body and a pulmonary contusion. It goes without saying that cleaning such abrasions, washing them, changing bandages, etc., can cause pain. There was medical testimony that the child had stiffness in his leg several weeks after the accident. Medical records introduced, and personal appearance by the child show the presence of permanent scarring about the body. Parental observations on the day of the accident revealed observations of dirty and bloody areas of the chest and arm of the child. Parental observations of the hospital staff cleaning the child's wounds were observed, in getting him ready for the x-ray. Use of IV's and dressings on the child's chest and various machines were observed. Medication was given to the child for his pain. There was a dressing under one of the child's arms where a rock had embedded during the accident. After the cast was removed, the child was observed walking with a limp, was slow moving, and he almost dragged his right leg. There was extensive skin discoloration on the child's chest, arm and back.

Nonetheless, testimony indicated the child has made a good recovery, and no future surgical or other medical intervention has been testified as necessary.

It has been difficult for courts to come to grips with concepts of pain and suffering. In those short intervals between injury and death, it has been said that suffering includes evaluation of the severity of the pain, the degree of consciousness, the apprehension of the injured party, the [*4]duration of the incident, and a certain level of cognitive awareness that can be present, even in a 15 day old infant (see Lopez, 305 AD2d 292). Extensive discussion of suffering indicates that it relates primarily to the emotional reaction of the injured person to the injury suffered (see McDougld v. Garber, 73 NY2d 246). Screaming, bleeding, application of medical care, making noises, all are components indicating suffering (see Juiditta v. Bethlehem Steel Corp., 75 AD2d 126 [4th Dept 1980], when 40 minutes of pain and suffering equated to a $70,000.00 award).

The Court has considered the nature of the injuries, the delay in ascertaining the fracture, the length of hospitalization, the surgery required, medication needed to relieve pain, the post confinement recovery time, the physical therapy required and accompanying rehabilitation, the future medical appointments post hospitalization, the lengthy period of a shortened leg and limp, the painful nature of the scraped and burned skin, the attendant pain associated with wound cleansing and bandage replacement, the unpleasant nature of personal hygiene problems reflected in descriptions of the cast and its status at the time of its removal, and the absence of need for future medical attention. (See Edwards, 267 AD2d 825).The Court concludes that the foregoing facts indicate an award to the infant of $80,000.00 for past pain and suffering is reasonable compensation. The Court is persuaded by the award upheld in a similar but not exact injury scenario seven years ago for a seven year old (Faulise, 254 AD2d 755). Any award less would be a material deviation from the statutory standard (CPLR 5501).

With regard to future pain and suffering, the proof here was limited to a jury viewing of the child's bodily scars. No evidence was introduced regarding the need for future treatment, and the child's father testified no such additional medical intervention was contemplated. Under these circumstances, the future pain and suffering is similar in scope to determining if the scarring was a significant disfigurement that justified categorization as a serious injury. Although the scar need not be immediately visible to justify an award (see Paoli v Sienkewicz, 278 AD2d 858 [4th Dept]); nonetheless, to set aside a jury finding, there must be some proof that ". . . a reasonable person viewing the plaintiff's body in its altered state [regards] the condition as unattractive, objectionable or . . . the subject of pity and scorn. "(Caruso v Hall, 101 AD2d 967, 968, aff'd 64 NY2d 843). The Court cannot say the Jury's finding was so contrary to the evidence to justify setting it aside in regards to the future pain and suffering determination (Lolik v Big V Supermarkets, Inc., 86 NY2d 744).

Plaintiff's Motion is Granted, and a new trial is directed on damages only unless Defendant stipulates to increase the verdict to $80,000.00 for past pain and suffering within 20 days of service of a copy of the Order of the Court determining this Motion.

The award for the infant Plaintiff is subject to the requirements for investment of infant's funds; and, if Defendant stipulates to the increased verdict, Plaintiff's counsel shall submit an [*5]appropriate Order (CPLR 1206).

The foregoing shall constitute the Decision of the Court on the submitted Motion.

Dated: September 26, 2005

Lowville, NYJoseph D. McGuire, J.S.C.