Henaghan v Algie

[*1] Henaghan v Algie 2013 NY Slip Op 51838(U) Decided on November 14, 2013 County Court, Suffolk County Tarantino, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 14, 2013
County Court, Suffolk County

Robert P. Henaghan, & JANET HENAGHAN, Plaintiff(s),

against

Daniel T. Algie SR., DANIEL T. ALGIE, JR., AND DOUGLAS ALGIE, Defendant(s).



04233/2008



Joseph C. Stroble, Esq.

Attorney for Plaintiffs

40 Main Street, POB 596

Sayville NY 11782

631-244-8297

Douglas Algie

Defendant, Self Represented

3 Hempstead Ave

Miller Place NY 11764

631-618-7084

Andrew G. Tarantino Jr., J.

NATURE OF THE CASE

This is a personal injury action in which the Plaintiff, Robert Henaghan, seeks money damages [*2]from Defendant Douglas Algie, for injuries he sustained on September 15, 2007, when the Defendant struck Plaintiff in the head with a barbell. On July 24, 2013, the action was transferred to this Court pursuant to CPLR §325(d). A trial was conducted on October 23, 2013.

PROCEDURAL HISTORY

This action was commenced by Summons and Complaint filed November 26, 2007. Robert Henaghan claimed damages from the above described barbell incident. Janet Henaghan claimed that she was "deprived of companionship, society, enjoyment and consortium" as a result of her husband's injuries. Another then-named Defendant, Chrystal Freeman-Garcia, answered the complaint and filed cross-claims against the Algies. On February 19, 2010, the action was discontinued against Ms. Freeman-Garcia. The Court examined the County Clerk filings and was unable to locate a Stipulation discontinuing the action against Daniel T. Algie, Sr.. The action was certified ready for trial on October 25, 2011, and the Note of Issue was filed December 22, 2011. On July 22, 2013, the action was transferred, pursuant to CPLR §325(d), to this Court for a jury trial only on the issue of damages. On the date of trial, Plaintiff's counsel informed the Court that the action was discontinued against Daniel T. Algie Jr., and the parties waived a jury trial and consented to a trial without jury. Defendant Daniel T. Algie, Jr., proceeded without an attorney and participated in cross-examining Plaintiffs' witnesses.

TESTIMONY

Robert Henaghan was born April 25, 1956. He has a 2 year college degree from Nassau Community College where he studied nursing but did not earn a degree. For the past seven years, he has worked as a driver for a local newspaper. Before that, he worked as a carpenter, learning the trade while working.

On September 15, 2007, while in a parking lot, he was hit in the head from behind by Defendant Douglas Algie.[FN1] Henaghan later learned that Algie used a barbell. As a result, Henaghan lost consciousness and awoke in a pool of blood. He underwent a surgical procedure in which a plate replaced the skull fragments pushed into his head. Henaghan currently has a 4-inch scar on the upper left side of the head. Henaghan claimed that he suffers from short term memory loss, and occasionally loses balance as a result of damage done to his ear. Sometimes when he awakes from sleep, he stumbles into walls until he regains his equilibrium. He also becomes very frustrated when his ability to communicate is hampered by his delay in searching for words to speak. He wears a hat because the injured area is sensitive to cold, heat, and the sun. He stated he takes Lyrica for pain. Henaghan complained that because of his injury he is unable to dance with his 4-year old granddaughter, and cannot go on rides with her. His hobby was working on cars. Now, as a result of the injury, he must be careful. He gets dizzy [*3]and needs to get out from under the car until the dizziness subsides. He now must also make notes and take pictures, to remind him of how to replace things; something he never had to do before the injury. Henaghan also said he must be careful on the riding lawn mower; if he rides it in circles it will cause him dizziness. He is concerned about the onset of Alzheimer's Disease.

When asked about the effect the injury has had on his relationship with his wife, Henaghan stated that his wife needs to explain things to him or he forgets. The frustration sometimes caused them to argue. He again repeated that, although it was "no big thing," he was unable to take his granddaughter on rides at Disney World.

On cross-examination, Henaghan acknowledged that he babysits for his granddaughter daily, and does pick her up. He has full use of his arms. He also acknowledged that he operated the vehicle while driving to the courthouse for trial.

The next witness was Janet Henaghan, Robert Henaghan's wife. She explained when she arrived at the scene she saw her husband being placed in the ambulance. Mr. Henaghan was hospitalized several days after the one surgery, then released to home. She described that the first 1-1/2 years after the incident, when her husband had trouble finding words to communicate, were the worst. She explained that Mr. Henaghan was depressed and cried a lot. He gradually got better. When she was asked about the impact of the injury on her relationship, she, too, described the frustration over Mr. Henaghan's problems with communication.

On cross-examination, Mrs. Henaghan acknowledged that Mr. Henaghan continues to drive even though he testified to experiencing dizziness. She acknowledged that it has been more than six months since she has had to drive for her husband.

The Defendant did not testify.

MEDICAL RECORD

Plaintiff submitted a narrative neurological report, certified and affirmed by Dr. Ahmed Elfiky. The report contained narratives for neurological examinations conducted on April 4, 2008, May 2, 2008, and February 18, 2013. The report confirmed that the Plaintiff suffered a left sided skull fracture with cerebral subdural hematoma. A permanent 3-inch plate was surgically placed in the Plaintiff's skull. The April 4, 2008, examination revealed that the Plaintiff had decreased cognitive function and short term memory recall. Plaintiff could only recall "1/5 after 5 minutes." Speech was compromised, and the Plaintiff experienced difficulty finding the correct words. There were no effects on the cranial nerves, that is, sight, smell, taste and facial sensations were all normal. Hearing was normal. The examination on May 2, 2008, revealed continued speech problems. However, the short term memory, while still decreased, was "1/3 after 5 minutes." The gait was described as "wide with a tendency to fall to both sides." The February 18, 2013, examination revealed that the short term memory loss remained at "1/3 after 5 minutes." In all other regards, the examination was identical to the prior exam. The final impression was a permanent post traumatic brain injury and subdural hematoma, parietal craniotomy and elevation of depressed skull fracture, post traumatic anxiety disorder, cervical radiculitis and balance disturbance. The Plaintiff was advised to follow up with psychotherapy or a psychiatrist to deal with his current medical condition. [*4]

DISCUSSION

Under CPLR §325(d), if an action is removed from Supreme Court to County Court, "then the verdict or judgment shall be subject to the limitation of monetary jurisdiction of the court in which the action was originally commenced and shall be lawful to the extent of the amount demanded within such limitation." Accordingly, this court is not limited to the $25,000.00 monetary jurisdiction of the County Court.

Under CPLR §4518( c), medical records are admissible as evidence as long as they are duly certified, sworn or affirmed. Rahman v City of New York, 2012 Slip Op 32380(U) (Sup. Ct., Queens County, 2012).Here Plaintiff submitted certified, affirmed or sworn medical records. Accordingly, based upon Plaintiff's testimony, and the admitted medical records, the court finds that the Plaintiff has suffered a permanent injury as a result of the incident on September 15, 2007.

DAMAGES

Having determined that the Plaintiff has suffered a permanent injury, the court must next determine an appropriate measure of damages. An unwarranted and excessive award after inquest will not be sustained, as to do otherwise, would be tantamount of granting the Plaintiff an open season' at the expense of the defaulting defendant." See, Neuman v Greenblatt, 260 AD2d 616, 688 N.Y.S.2d 257 (2d Dep't, 1999). The Court referred to prior decisional law for damages assessed in cases with similar injuries.

In Rahman v City of New York, a 34 year old man suffered a traumatic brain injury after receiving a 2-1/2 inch hole in his skull. He was hospitalized for 1 month, which included 3 weeks in a coma. That Plaintiff suffered the loss of one eye, loss of memory, and continued to have seizures. That Plaintiff also engaged in rehabilitation therapy. In addition to lost wages and medical expenses, he was awarded $1.5 million for past pain and suffering and $1.5 million for future pain and suffering.

In Popolizio v County of Schenectady, 62 AD3d 1181, 879 N.Y.S.2d 616 (3d Dep't, 2009), a 56 year old Plaintiff suffered a traumatic brain injury. He had to rely on others to operate his business, and he stopped sporting activities and family gatherings. That Plaintiff also had a post accident IQ test which reflected that as a result of the accident he bordered on mild retardation. He was awarded $350,000.00 for past pain and suffering, and $2.1 million for future pain and suffering.

In Hernandez v Vavra, 62 AD3d 616, 880 N.Y.S.2d 50 (1st Dep't 2009), the Plaintiff suffered a traumatic brain injury with subarachnoid hemorrhage. That Plaintiff will require 12-hours per day home healthcare for the rest of his life (15 years). He was awarded $1 million for past pain and suffering and $1.75 million for future pain and suffering.

In Sadhwani v New York City Tr. Auth., 66 AD3d 405, 890 N.Y.S.2d 458 (1st Dep't 2009), the Plaintiff suffered a traumatic brain injury which severely impaired her immediate and delayed recall and abstract thinking, and her orientation to time and space, resulting in memory loss. As a result, that Plaintiff had limited ability to recall the events surrounding the accident, she was unable to recollect her accurate home address, the current month, the circumstances of the accident, or any details concerning her medical treatment. She was awarded $1.9 million for past and future pain and suffering over 10 years. [*5]

In Siagha v Salant-Jerome Inc., et. Al., (JVR No. 359246) 1998 WL 1060763, the 29-year old Plaintiff suffered a traumatic brain injury, bipolar disorder, head lacerations, and emotional distress. He was involved in an altercation at a bar and was struck in the head with a metal bat. In addition to wages, he was awarded $650,000.00 for pain and suffering.

In Patterson v Rags to Riches Comedy Shop, et. Al., (JVR 186242) 1996 WL 696365, the 26-year old Plaintiff suffered a traumatic brain injury resulting in difficulty concentrating and memory loss, a fractured nose requiring surgery when he was assaulted by a bouncer at a nightclub. He was awarded $900,000.00 in damages.

The fact of this case that is similar to the above cases was that the Plaintiff suffered a traumatic brain injury. It is the severity of the injury, and long term consequences, which are apparently dissimilar. Unlike the Plaintiff in Popolizio v County of Schenectedy, supra., 879 N.Y.S.2d 616 , there was no test showing that Mr. Henaghan's IQ was affected; although test results indicated that his short term memory was affected. Based on his own medical record, and consistent with both his and his wife's testimony, Mr. Henaghan's short term memory improved albeit still at a deficit. Unlike the Plaintiff in Hernandez v Vavra, supra., 880 N.Y.S.2d 50, Mr. Henaghan did not demonstrate any need for long-term home health care, nor other assistance. He still cuts the lawn (while needing to avoid too many circular movements), he still works on cars (even if he needs to stop when feeling dizzy), and he babysits his granddaughter daily (despite his inability to share amusement park rides). In contrast to the Plaintiff in Sadhwani v NY City Transit Authority, supra., 1998 WL 1060763, Mr. Henaghan clearly recalled his address, and the events leading up to the incident. In the Court's opinion, his recitation of the events was free and unhampered, whereas his direct testimony was replete with appearances of searching for words to speak. Mr. Henaghan also failed to submit any evidence of being treated for emotional distress, or of lost wages or out of pocket expenses. The Court only references these cases to demonstrate comparisons of damage awards relative to the extent of the injuries claimed in other cases; the Court is not diminishing the atrocity perpetrated upon him and his family.

Based upon life expectancy tables, Mr. Henaghan has a life expectancy of twenty-one (21) more years. However, Such a table provides nothing more than a statistical average. It neither guarantees that Plaintiff will live those additional years nor means that he will not live for a longer period. The life expectancy figure is not binding, but may be considered together with the Court's own experience and the evidence it heard concerning the condition of Plaintiff's health, habits, employment and activities in deciding what Plaintiff's present life expectancy is. (Pattern Jury Instruction 2:281)

Accordingly, for pain and suffering from the date of the accident until today, the Court awards Mr. Henaghan the sum of ONE HUNDRED FIFTY THOUSAND DOLLARS ($150,000.00). Further, for future pain and suffering, the Court awards Mr. Henaghan the sum of FIVE HUNDRED TWENTY FIVE THOUSAND DOLLARS ($525,000.00).

DERIVATIVE ACTION

Referring to NY Pattern Jury Instruction 2:315, in deciding the damages in a claim for loss of services by a spouse, one may take into consideration: [*6] the nature and extent of the husband's services and society before the injury, including his disposition, temperament, character and attainments; the interest he showed in his home; the social life of his family and in the comfort, happiness, education and general welfare of the members of the family; the services he rendered in superintending the household, training the children, assisting his spouse in the management of the business or affairs in which the spouse was engaged, if any; his acts of affection, love and sexual intercourse and the extent to which the injuries he sustained prevented him from performing such services and providing such society.

Based upon the testimony, and as further compared above, the Court hereby awards Mrs. Henaghan the sum of FORTY THOUSAND DOLLARS ($40,000.00) for past and future loss of consortium.

This constitutes the decision and order of the Court.

Submit Judgment.

ENTER

_____________________________________

Judge Footnotes

Footnote 1: Upon the Court's inquiry, the Plaintiff explained the circumstances that brought him to an empty parking lot with Defendant. He recalled that he was at a local intersection awaiting a green turning light, and Defendant and Defendant's brother were in the car next to him. The Defendant had been dating Plaintiff's daughter, but apparently ended their relationship the night before the incident. Plaintiff stated that while at the intersection he told Defendant something in line with, "thanks for doing that to my daughter." Defendant told Plaintiff to follow him after the turn, which Plaintiff did. They arrived at an empty school parking lot. While Plaintiff engaged Defendant's brother, Plaintiff was struck from behind by the Defendant.