Jeter v City of New York

[*1] Jeter v City of New York 2007 NY Slip Op 52123(U) [17 Misc 3d 1123(A)] Decided on October 26, 2007 Supreme Court, Kings County Knipel, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 26, 2007
Supreme Court, Kings County

Naqueen Jeter, an infant by his Parent and Natural Guardian, Takeysha Jeter and Takeysha Jeter, Individually, Plaintiffs,

against

The City of New York, et. ano., Defendants.



18743/02



Attorneys for Plaintiffs

Shaub, Ahmuty, Citrin & Spratt

1983 Marcus Avenue

Lake Success, NY 11042

(516) 488-3300

Attorney for Defendants

Corporation Counsel

100 Church Street

New York, NY 10007

(212) 788-0705

Lawrence J. Knipel, J.

Defendants The City of New York and the Board of Education of the City of New York move for an order, pursuant to CPLR 4404(a), setting aside the jury verdict in favor of plaintiffs and either directing verdict in their favor or directing a new trial on the issue of liability. Alternatively, defendants seek a new trial on the issue of damages on the ground that the awards are unsupported by the evidence and are excessive. Plaintiff Naquan Jeter cross-moves for an order, pursuant to CPLR 4404, directing that those damages be increased.

The infant plaintiff (plaintiff), then a sixth grader at Intermediate School 292 in Brooklyn (IS 292), was seriously injured when he fell down a flight of stairs on his way to lunch. Because of the resultant traumatic brain injury, plaintiff was unable to remember what caused him to fall. However, it was plaintiff's theory at the trial of this action, which commenced on Match 27, 2007, that he was pushed down the stairs by a group of older students. Plaintiff further presented testimony that it was the written policy of IS 292 to have a teacher escort the sixth graders down to lunch from their second floor classrooms. Plaintiff claims that his teacher's negligent failure to do so proximately caused his injury.

On April 2, 2007, the jury found defendants "negligent in the supervision of plaintiff" and further found that that negligence was a substantial factor in causing the injuries sustained by him. The jury awarded plaintiff damages in the aggregate sum of $200,000 for past pain and suffering and $150,000 for future (58 years) pain and [*2]suffering. The jury also awarded plaintiff damages of $800,000 for impairment of future earnings during the next 45 years.

Defendants and plaintiff now make the aforementioned motion and cross motion.

THE EVIDENCE AT TRIAL

The Plaintiff's case

David Prager testified that he was employed by the Board of Education and sometime in mid-January, 2002 he was assigned to IS 292. Mr. Prager explained that, at that time, the school had issues with discipline and was also going through a transition - it had a new principal, as well as several other new personnel. Mr. Prager stated that he was sent to the school to increase the administrative presence - his duties included monitoring the hallways and stairwell to insure that students did not congregate there and create a safety and discipline hazard.

Mr. Prager testified that the sixth graders were treated differently than the older students at the school because it was recognized that, as the youngest students at the school, they were at the greatest risk of being injured as a result of older students gathering in the hallways or in the stairwells. He acknowledged that one of the reasons the administration did not want children to loiter in the stairwells was to avoid the risk of a small child being be pushed or falling down the stairs. To minimize this risk, the administration created several procedures. First, instead of having the sixth graders move from class to class, the various subject matter teachers would come to their classrooms. Moreover, a written policy was created whereby each teacher who taught a sixth grade class before lunch was required to accompany his or her students from the second floor, where the classrooms were located, to the first floor lunchroom.

Mr. Prager testified that on the day of plaintiff's accident, after the bell rang for sixth grade lunch, he walked along the second floor hallway and then down to the lunchroom on the first floor. While in the cafeteria, he heard the late bell sound and, thereafter, went back up to the second floor to see if there were any stragglers.

Mr. Prager stated that at first he saw no students as he walked down the second floor hallway, but, then, a group of students ran in front of him, allowing him only a view of them from the back. Mr Prager heard someone in the group scream, "Prager is coming" and then the group opened the stairway door and disappeared from sight. Shortly thereafter, Mr. Prager entered the stairwell - the group of running students had disappeared, but as he looked down the stairs, he saw droplets of blood on the landing and observed plaintiff being led down the hall by a school safety officer who had been stationed on the first floor. Mr. Prager later learned that plaintiff was taken to the nurse's office and left the school by ambulance.

Mr. Prager never learned the identity of the group of students he had witnessed running down the stairway and, in fact, they were never identified. [*3]

Plaintiff testified that, on January 30, 2002, he had been in math class on the second floor right before lunch and that the teacher for the class was Mrs. Thomas. According to plaintiff, Mrs. Thomas never escorted her class to the lunchroom and that day was no exception. Plaintiff stated that at the sound of the bell, he and his friend Nathaniel headed to one stairwell, while the rest of the class went to the stairwell at the other side of the hall. Nathaniel did not see any adults in the stairwell when he got there, but there were a group of older boys there who moved over as he and his friend approached.

Plaintiff testified that he suddenly heard footsteps which sounded like they were coming from a herd of buffalo and the next thing he remembered was waking up in the school nurse's office with a tissue on his forehead and blood stains on his shirt. Plaintiff was taken by ambulance to Brookdale Hospital (Brookdale) where he spent time in the Intensive Care Unit.

At trial, plaintiff detailed the "excruciating" pain he suffered immediately following his accident and for the six days he spent in the hospital. Plaintiff described this pain as being in his head, neck, and lower back. Additionally, his arms and leg were swollen and sore and he was in a neck brace.

After his release from the hospital, plaintiff received outpatient physical and occupational therapy there. The purpose of the physical therapy was to improve his balance and mobility skills and the occupational therapists sought to improve plaintiff's hand/eye coordination and to build strength in his arms. Plaintiff stopped attending therapy in August, 2002, but had to use a cane for balance for about three years.[FN1]

Plaintiff testified that he was home-schooled for the remainder of sixth grade and returned to school the next year. According to plaintiff, he has a much harder time understanding his schoolwork since his accident and, as a result, his grades have substantially dropped. He also is unable to remember more than one item at a time and feels "dumb and frustrated". Plaintiff testified that he planned to attend college to study graphic design. He stated that he liked computers, but that it takes him much longer to finish video games than it did before his injury.

Plaintiff testified that up to about a year before the trial he would get very bad headaches every week or two and these headaches would last between two and three days. When he had a headache, all he wanted to do was sleep because it hurt to be around noise and light. At trial, plaintiff reported that he continues to take medication to prevent the return of these attacks. Lastly, plaintiff testified that his head injury has affected his ability to play sports because he is unable to stand for long periods or to jump. [*4]

Dr Eric Minkin, a radiologist at Brookdale testified that, on January 30, 2002, he examined x-rays and CAT scans that were taken that day of plaintiff's head neck and spine. Those imaging studies revealed that plaintiff was bleeding into his scalp in the area above his right eye. Plaintiff had also sustained a linear non-depressed skull fracture which type of injury is caused by a great deal of force to the head and, opined the doctor, was caused by plaintiff's fall down the stairwell.

The doctor noted that the imagings did not reveal damage to the brain itself, but explained that such damage is often not discernable from a picture, which shows only the structure and not the function of the brain. Lastly, the doctor stated that the kind of injury sustained by plaintiff suggested that he was pushed from behind and was unable to break his fall with his hands, so that the full force of the impact was to his forehead.

Dr. Elkhonon Goldberg, a neuropsychologist, testified at trial that traumatic brain injuries are likely to disrupt various mental functions, including memory, attention, language and decision making. The doctor further stated that an injury to the frontal lobe of the brain generally affects the "executive function" or the ability to plan, make decisions, anticipate the consequence's of one's actions, control impulses, and have foresight and empathy for others.

Dr. Goldberg first examined plaintiff on January 15, 2004. This examination included extensive interviews with plaintiff and his mother, a review of the medical records from plaintiff's hospitalizations and the administration of neuropsychological tests. The doctor stated that plaintiff had no memory of his accident, which was a common result of a traumatic brain injury.

On the Wechsler Intelligence Scale for Children, plaintiff scored a full scale IQ of 112 with a score of 122 on the performance section and 102 on the verbal section. Dr. Goldberg explained that those two scores should be comparable and opined that the higher score was indicative of plaintiff's true IQ before the accident and that the disparity had been caused by his brain injury.

Dr. Goldberg explained that plaintiff's injury was to his left side of the brain which controls language and thus he scored average on tests which measured spatial and non-verbal reasoning. However, stated the doctor, plaintiff performed poorly, and well below the level commiserate with his IQ, on the Wide Range Achievement Test, which measures academic skills, the California Verbal Learning Test, which tests verbal memory, as well as on two tests which measure attention span. The doctor explained that all these results were consistent with the frontal lobe injury caused by the trauma to plaintiff's brain. The doctor opined that the severe impairment of plaintiff's executive function was caused by his fall down the stairs.

Dr. Goldberg also found that plaintiff suffered from "Right Hemiinattention". At trial, he explained that the left side of the brain processes visual information from the right side and that plaintiff's left frontal lobe impairment made it hard for him to attend to images coming at him from the right side. [*5]

Dr. Goldberg opined that all these deficits accounted for the substantial decline in plaintiff's academic performance in seventh and eighth grade. The doctor noted that plaintiff had performed at an average level before his injury and at a failing level after the accident and had also been labeled "learning disabled" after his fall. The doctor further stated that plaintiff was aware of many of his deficits and was often frustrated at not being able to do what he had previously been able to do.

Dr. Goldberg testified that his evaluation of plaintiff had led him to conclude that he had a clinically significant cognitive deficit and as a result his "future ability to learn is significantly impeded, and basically derailed by this accident" and that these deficits were consistent with, and caused by, the trauma to his brain from the fall. He further opined that the deficits were likely to be permanent - he had tested him again in February, 2005 and found that very significant impairments persisted - and would adversely affect plaintiff's educational future.

The doctor explained that plaintiff's performance IQ of 121 was superior and had not been affected by the accident, and that, if plaintiff had not suffered the deficits as a result of his brain injury, he could have easily graduated from college and even obtained a Master's degree. He stated that he had "grave doubts" as to whether he would be able to succeed in college.

Dr. Alan Leiken, an economist, testified that by comparing the average income and benefits packages of college and high school graduates, he had been able to calculate the loss to plaintiff if he does not graduate from college at $4,373,248.00 in income and $1,093,312.00 in benefits. Dr. Leiter also compared the salary and benefits of a graduate of a two year college with that of a graduate of a four year college and found plaintiff's loss, if he is able to obtain a degree from a two year college rather than from a four year one, to be $1,542,232.00 in income and $385,558.00 in benefits.

The Defendants' Case

Defendants called only one witness to testify. Dr. Marlon Seliger, a neurologist examined plaintiff for about five or ten minutes on April 27, 2005. Dr.Seliger explained the difference between a neuropsychogist and a neurologist a neuropsychologist studies an individual's mental processing while a neurologist focuses his study on the medical aspects and diseases of the brain.

In conducting his neurological examination upon plaintiff, the doctor first asked plaintiff questions to determine if he was oriented to person and place. He also asked him questions to assess his cognition, memory, and speech and language ability. He then performed a motor and sensory examination. Dr. Seliger did not find any deficits in plaintiff's neurological function and concluded that he did not suffer a neurological injury as a result of his fall down the stairs.

Defendants' motion

Liability

Defendants ask this court to set aside the jury verdict rendered in favor of plaintiff and grant judgment in their favor on the ground that they cannot be liable for plaintiff's [*6]injury as a matter of law. Alternatively, defendants seek an order, pursuant to CPLR 4404(a), setting aside the jury verdict and ordering a new trial on the ground that the verdict is against the weight of the evidence.

According to defendants, assuming that plaintiff was pushed down the stairs by the unidentified group of students, that attack was not reasonably foreseeable by the school and, since the unprovoked attack was sudden and spontaneous, any lack of supervision by the plaintiff's teacher could not have prevented it. Thus, concludes defendants, that lack of supervision was not the proximate cause of plaintiff's injury. The court rejects defendants' contention that the verdict is contrary to the law.

It is beyond cavil that schools are "under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision" (Mirand v City of New York 84 NY2d 44, 49 [1994]; see Convey v City of Rye School District, 271 AD2d 154 [2000]; Brown v Board of Educ. of Glen Cove Pub Schools, 267 AD2d 267 [1999]. "The duty owed derives from the simple fact that a school, in assuming physical custody and control over its students, effectively takes the place of parents and guardians" ( Mirand, 84 NY2d at 49; see, Pratt v Robinson, 39 NY2d 554, 560 [1976]).

In previously denying summary judgment to defendants, this court (Hinds-Radix, J.), in a decision and order dated April 10, 2006, found that questions of fact existed "as to whether the school had a written policy for teachers to escort the sixth grader classrooms to the cafeteria; whether it violated that policy and whether such violation was a proximate cause of the injury". At trial, it was undisputed that the school did have such a written policy. As noted, David Prager, the assistant principal of the school, explained that that policy was put into effect because it was recognized that the sixth graders should not be unsupervised in the hallways and the stairwells since, as the youngest members of the school community, they were at the greatest risk of being injured in those areas. Having defined their duty, the defendants cannot now claim that no such duty existed. In that same vein, it is disingenuous for defendants to claim that such an attack was unforeseeable when their own assistant principal testified that one of the reasons that crowds were kept out of the stairwells by the teachers was because someone could get pushed down the steps.

Nor did defendants present any evidence to dispute plaintiff's testimony that his teacher violated that duty by staying in the classroom instead of escorting her class to the lunchroom. Finally, the evidence failed to establish as a matter of law that the violation of the defendants' duty that is, the fact that there was no teacher in the stairwells was not the proximate cause of plaintiff's injury or that her presence therein may have prevented the incident.

Thus, the court concludes that defendants have not established their entitlement to judgment as a matter of law, and that the issues of fact were properly left for jury determination. Defendants contend that its determination was against the weight of the evidence presented at trial. [*7]

As is relevant here, CPLR 4404(a) states:

Motion after trial where jury required. After a trial of a cause of action or issue triable [sic] of right by a jury, upon the motion of any party or on its own initiative, the court may set aside a verdict or any judgment entered thereon and direct that judgment be entered in favor of a party entitled to judgment as a matter of law or it may order a new trial of a cause of action or separable issue where the verdict is contrary to the weight of the evidence.

In applying this provision, it has been held that to sustain a determination that a jury verdict is not supported by sufficient evidence as a matter of law, there must be "no valid line of reasoning and permissible inferences which could possibly lead rational men to the conclusion reached by the jury on the basis of the evidence presented" (Nicastro v Park, 113 AD2d 129, 132 [1985], quoting Cohen v Hallmark Cards, 45 NY2d 493, 498 [1978]; see also Kaplin v Miranda, 37 AD3d 762 [2007]).

Further, it is well established that a jury verdict may not be set aside as against the weight of the evidence unless it plainly appears that the evidence so preponderates in favor of the other side, that such verdict could not have been reached by any fair interpretation of the evidence (CPLR 4402(a), Nicastro, 113 AD3d at 134; see Cohen, 49 NY2d at 498-499; Kaplin 37 AD3d at 762-763). Moreover, courts are cautioned to exercise the discretionary power to set aside a verdict sparingly to avoid usurping the jury's function (see Nicastro, 113 AD2d at 134). In that regard, great deference is accorded to the fact-finding function of the jury, since, having seen and heard the witnesses at trial, it is in the foremost position to assess their credibility (see Ashby-Smith v Al-Jac Trans Serv., 275 AD2d 133 [2000]; Teneriello v Travelers Co., 264 AD2d 772, [1999], lv denied 94 NY2d 758 [2000]).

Here, as discussed, the evidence supported the jury's determination that the defendants had a duty to protect plaintiff by escorting him and his classmates down to the lunchroom and that her failure to do so was a violation of that duty. The court also concludes that the jury's further determination that that violation was a proximate cause of plaintiff's injury was supported by a "valid line of reasoning and permissible inferences" and therefore should not be disturbed.

It is true, as defendants note, that there was no direct evidence as to how plaintiff fell down the stairs. However, the circumstantial evidence at trial supported the conclusion that plaintiff was in fact pushed down the stairs by an older student. In that regard, it is well settled that when relying upon circumstantial evidence to establish all or part of a plaintiff's prima facie case "[i]t is enough that [plaintiff] shows facts and conditions from which the negligence of the defendant and the causation of the accident by that negligence may be reasonably inferred' (Schneider v Kings Highway Hosp. Ctr., 67 NY2d 743, 744 [1986] quoting Ingersoll v Liberty Bank, 278 NY 1, 7 [1938]; see Turcsik v Guthrie Clinic, Ltd., 12 NY3d 881, 886 [2004]; Secom v Greens Condominium,158 AD2d 591 [1990]). [*8]

Here, Mr. Prager testified that he saw a group of students running toward the stairway and bounding into the stairwell. While plaintiff had no memory of his fall, he did remember hearing heavy footsteps approaching. When Mr. Prager opened the stairwell's door minutes later, the group was no longer there, but he saw plaintiff's blood on the ground at the bottom of the stairs and plaintiff being helped to the nurse's office by a security guard.

Faced with this evidence, that the group charged through the stairwell where plaintiff had just entered and disappeared after his fall, it was reasonable for the jury to infer that one or more of the members of the group was responsible for plaintiff's injury.

Defendants contend, however, that even assuming their duty and their negligence, they cannot be held liable because the evidence established that the attack happened so quickly that, even had a teacher been stationed on the stairwell, it could not have been prevented. Thus, claims defendants, the evidence failed to support the jury's finding that their lack of supervision was a proximate cause of plaintiff's injury.

The jury however could have reasonably concluded from the evidence that had the teacher escorted plaintiff's class to the lunchroom, plaintiff would have been directed down the stairway with the class. Instead, plaintiff went down a different stairway with his friend leaving him more vulnerable to attack.

Moreover, the jury could have reasonably concluded that had a teacher been present in the stairway, the student or students would not have pushed plaintiff. After all, the jury may use the "logic of common experience itself, as applied to the circumstances shown by the evidence" in determining whether the defendant's negligence caused plaintiff's injury (Schneider, 67 NY2d 741, 745). The conclusion that the students did not want to be identified and would not have committed what could have been charged as a criminal assault in front of a witness is not only supported by common sense, but by the fact that they ran from the scene after plaintiff's fall. The jury could also conclude that had plaintiff tripped down the stairs through no fault of these students, they would have likely sought to get him help rather than run away.

In short, the court denies those branches of defendants' motion which seek to set aside the jury verdict as contrary to law or as against the weight of the evidence.

Finally, the court denies that branch of defendants' motion which seeks an order reducing the damages awarded plaintiff, as well as plaintiffs' cross motion seeking an increase in those damages. It is well settled that the amount of damages to be awarded for personal injuries is primarily a question for the jury, and great deference is given to its interpretation of the evidence and findings of fact, provided there is sufficient credible evidence to support the findings ( see Vasquez v Jacobowitz, 284 AD2d 326 (2d Dept. 2001). Here, the jury was presented with credible evidence of plaintiff's mental deficits which resulted from the injury, skills he still possesses, and how his deficits will affect his future earnings. The court finds that the damages awarded were properly based upon a fair interpretation of that evidence (see Kennedy v New York City Health and Hospital Corp., 300 AD2d 146 (2002). [*9]

Accordingly, the court denies both defendants' motion and the plaintiffs' cross motion.

This constitutes the decision and order of the court.

E N T E R,

J. S. C. Footnotes

Footnote 1: Dr. Edward Kang, M.D. a rehabilitation specialist at Brookdale treated plaintiff as an outpatient following his discharge from the hospital. Dr. Kang explained that plaintiff symptoms were consistent with brain damage caused by the fall down the stairs and that he received physical therapy twice a week until August, 2002, when it was determined that he had received the maximum benefit of therapy.