Zimmerman v Board of Educ. of the City of New York
Annotate this CaseDecided on October 29, 2008
Supreme Court, Bronx County
April Zimmerman and STEPHEN CHANOWSKY, Plaintiffs,
against
The Board of Education of the City of New York, Defendant.
18563/02
Attorney for Defendants
Michael A. Cardozo
Corporation Counsel
The City of New York and
The Dept. Of Educ. Of
The City of New York
198 East 161st Street, 3rd Floor
Bronx, New York 10451
By: Erious Johnson, ACC
(718) 590-3910
Attorneys for Plaintiffs
Seligson, Rothman & Rothman, Esqs.
Of Counsel to Jeffrey Shapiro & Associates
April Zimmerman & Stephen Chanowsky
401 Broadway
New York, New York 10013
(212) 966-5020
George D. Salerno, J.
Plaintiffs move, pursuant to CPLR 4404(a), to set aside the jury's verdict
and directing a new trial unless defendant stipulates to increasing the jury's verdict
regarding:
(a) damages to plaintiff April Zimmerman for past pain and suffering including loss of enjoyment of life;
(b) awarding plaintiff Zimmerman damages for future pain and suffering;
( c) awarding plaintiff Zimmerman damages for future lost wages; and
(d) awarding to plaintiff Stephen Chanowsky, the husband of April Zimmerman, damages for the loss of services and society of his wife.
Defendant cross moves for an order, pursuant to CPLR §2221 and 4404(a) to set aside
the verdict and remand this action for a new trial on liability and damages.
BACKGROUND
The essential facts in this case arise from an incident that occurred on October 26, 2001 at a Special Education School located in the Bronx. At that time, plaintiff Zimmerman was employed by defendant as a school counselor. Her educational background includes receiving B.A.and M.A. degrees in school psychology and advanced training as a school psychologist and counselor. The student body which attended the school, where plaintiff Zimmerman was assigned, is composed of students who are behaviorally and or emotionally disturbed, some who have attention disorder deficits and students who are otherwise handicapped.
On October 26, 2001, the day when the incident occurred upon which plaintiffs' action is premised, plaintiff, April Zimmerman was assisting another teacher with escorting a class of twelve (12) students from the school cafeteria to their classroom located on another floor in the school. The event which preceded this circumstance was a fight that occurred in the school cafeteria between two students. It is unclear how long the two students were fighting but this altercation occurred in the presence of Zimmerman, the class teacher, Ms. Gibson, and a school guard who was in the cafeteria. It is clear that the two protagonists were separated and the student, Peal, who apparently started the altercation was not one of the students assigned to Ms. Gibson's class. After the fighting stopped, Mr. Peal, was sent back to his own class. Ms. Gibson then decided to move her students from the cafeteria to their classroom on another floor. As plaintiff Zimmerman and the students with Ms. Gibson were walking up a stairway to return to their classroom, Zimmerman noticed Peal, the student who was involved in the prior altercation, [*2]"racing up the steps" and upon catching up to the class, Peal, again began fighting with the student in Ms. Gibson's class who was involved in the prior altercation that occurred in the cafeteria. At this point Zimmerman was on the landing and while attempting to separate the two combatants, she was pushed and fell backward on the landing, struck her head and rendered unconscious. Zimmerman was removed from the school by ambulance to St. Barnabas Hospital where she was treated for four days before being released.
It is undisputed that Zimmerman commenced having seizures which she testified never
occurred before the incident involving the altercation between the two students at the school
where she worked as a psychologist. Zimmerman also sought treatment at Westchester Medical
Center and later commenced treatment with a neurologist to relieve her seizures. Later, because
her seizures continued, she consulted with Dr. Ali Pack, at Columbia University, as a result of
developing gastrointestinal problems attributable to medications to control her seizures which
caused further complications regarding her ongoing seizures.
THE TRIAL - PLAINTIFF'S MEDICAL EVIDENCE
The medical evidence presented by plaintiffs was basically uncontested. Although Zimmerman did return to work for approximately eighteen 18 months, after she was injured, she could not continue to work because of her inability to control her seizures. The progressive nature of her seizures interfered with her ability to discharge her responsibilities as a school psychologist and also interfered with her ability to perform her usual daily tasks such as driving an automobile. Defendant never presented medical evidence disputing plaintiff's medical expert or contesting the evidence adduced at the trial regarding the severity and permanency of plaintiff's medical condition.
Zimmerman testified that she was unable to continue in a life style which significantly changed because of her uncontrolled seizures. For example, she was no longer able to go to a supermarket, to purchase food items for herself and her husband. Her traumatic epileptic seizures also caused both urinary and fecal incontinence and her medical treatment regarding her epilepsy included hospitalizations at St. Barnabas Hospital in March 2002, February 2004, and May 2005. Zimmerman was also admitted to New York Presbyterian Hospital in June 2002, February 2003 and October 2003, and also September 2004. There were also outpatient visits to Vassar Medical Center in 2005, 2006 and 2007. Zimmerman was also treated at New York University's Epilepsy Center. Her inability to control her seizure disorder caused severe weight loss requiring the surgical placement of a gastrostomy tube to enable intravenous feeding.
Based on the uncontroverted evidence, including the testimony of plaintiff's expert, her seizures and the rapidity of her seizures, are permanent. Plaintiff's expert also testified that Zimmerman may need future complex invasive brain surgery to control her seizures. Apart from the absence of medical evidence presented by defendant, the jury also heard plaintiff testify regarding the trauma she encounters on a daily basis caused by the continuance of seizures she experiences and the fear she constantly experiences because she never knows when the next seizure will occur. She also testified how her medical condition affected her daily living activities.
With respect to plaintiff's husband derivative claim, his testimony identified with specificity
the loss of companionship which he experienced since his wife's epileptic seizures began, his
need to assist his wife on a daily basis because she could no longer perform her usual [*3]daily tasks or even drive an automobile and the impact of her injury
which adversely affected their socializing and intimacy arising from her uncontrolled
seizures.
DEFENDANT'S CROSS MOTION
Defendant contends that plaintiffs failed to prove that the Board of Education assumed a
special duty that was breached and consequently plaintiffs' claims must be dismissed. In essence,
defendant argues that plaintiff's claim rests on the theory that defendant failed to provide
adequate security regarding the altercation that occurred and the events which later transpired
that caused the injury sustained by Zimmerman. The defendant also argues that in order order for
the plaintiff to recover on this theory Zimmerman was required to plead and prove that
defendant, Board of Education, as a public entity owed her a special duty to prevent the assault
which occurred on the stairway.
DISCUSSION
Here, defendant refers this Court to several cases which allegedly support its contention that plaintiffs' complaint be dismissed since plaintiffs failed to establish a breach of a special duty. The plaintiffs in Cuffy v. City of New York sustained personal injuries arising from a landlord tenant dispute which had been previously mediated by the police. Judge Tutone writing on behalf of a unanimous court reviewed the determination from the court below which upheld tort claims brought against the City of New York based upon a special relationship between the police department and the plaintiffs who were injured in an altercation with their neighbor. Reversing the Court below, the court held that: "As a general rule, a municipality may not be held liable for injuries resulting from a simple failure to provide police protection" (citation omitted.) The exception to this rule has been applied to a narrow class of cases where proof of a special relationship is presented between the "municipality and claimant." The court then determined, based on facts which are significantly different than the facts presented in the cast at bar that plaintiff's claim must fail. Cuffy v. City of New York, 69 NY2d 255, 505 NE2d 937, 513 NYS2d 372 (1987).
Thus, while the decision rendered in Cuffy is quite informative, the plaintiffs in Cuffy who sued the City were not employees of the Board of Education, assigned to work in an atmosphere fraught with danger that manifestly was recognized by the State of New York when the Commission of Education promulgated rules establishing a ratio between a teacher and the number of emotionally disabled students that would compose a class size. Moreover, the Board in the case at bar, implicitly recognized the need to protect its teachers and employees such as Zimmerman whose assigned tasks and responsibilities manifestly required the Board to hire security guards to protect its employees such as the plaintiff. The duty of the Board to provide adequate protection was intended to insure the safety of teachers and professional counselors such as Zimmerman.
The Board also recognized the potential danger to teachers and employees such as plaintiff by limiting class sizes to no more than twelve (12) students who exhibited adverse social tendencies such as engaging in physical assaults. The presence of a security guard in the cafeteria, the site of the initial physical engagement between the two students, one of whom was part of the twelve students assigned to Ms. Gibson clearly is a recognition by the Board that inaction could lead to harm to teachers and Zimmerman. However, no guard was present in the [*4]cafeteria where Mr. Peal remained with his teacher Mr. Cutter, after Zimmerman left the cafeteria with the twelve (12) students and Ms. Gibson. Moreover, no evidence was offered by the Board explaining Peal's ability to move freely about the school without supervision. Such circumstances in the case at bar distinguish this case from decisions rendered in Moreno v. City of New York,27 AD3d 536, 813 NYS2d 143 (2d Dept. 2006); Buder v. City of New York, 43 AD3d 720, 843 NYS2d 206 (1st Dept. 2007); and France v. New York City Bd. of Educ., 40 AD3d 268, 834 NYS2d 193 (1st Dept. 2007).
Plaintiffs' expert, Dr. James Monk, testified that the school administrators, including the principal and assistant principal, departed from accepted educational practices and established administrative procedures by failing to provide for the orderly supervision of students when moving from the cafeteria to their class room nor were procedures implemented by the school administrators to prevent students from roaming freely about the school. In addition, plaintiffs' expert testified that procedures were not in place to have paraproffesionals in the cafeteria when the fighting incident occurred or to monitor the whereabouts of students who had engaged in physical contact with other students.
The jury in the case at bar found defendant negligent in failing to prevent the student, Mr. Peal, from leaving the cafeteria and that defendant's negligence was a proximate cause of plaintiff Zimmerman's injury. The finding of negligence by the jury is consistent with the court's determination in Meyers v. City of New York, 230 AD2d 691, 646 NYS2d 685 (1st Dept. 1996), lv dismissed, 89 NY2d 1085, 681 NE2d 1306, 659 NYS2d 859 (1997), where a teacher was struck in her eye by a ball during an unsupervised recess. The Court in Meyers approved the finding that the Board of Education of the City of New York was negligent and the absence of proof of a special relationship "has no relevancy with respect to the Boards duty of [care] to its employees." Meyers, 230 AD2d at 693. The Board here was obviously aware of the need to have a plan in place at the school where emotionally disturbed children are placed that would provide adequate protection to students, their teachers and professionals such as Zimmerman from physical altercations that could jeopardize their safety.
The jury's verdict found the Board of Education negligent in failing to prevent the student, Mr. Peal, who left the cafeteria unattended to continue his fight with the student in Ms. Gibson's class and that such negligence was the proximate cause of Zimmerman's injury. The jury then awarded Zimmerman $100,000 for past pain and suffering and $300,000 for lost wages. However, the jury failed to award damages for future pain and suffering and failed to provide a recovery for future lost wages even though plaintiff Zimmerman had a work life expectancy of 11 years. In addition, the jury refused to compensate plaintiff's husband for past loss of services and loss of society of his wife.
Obviously, the jury concluded that Zimmerman was injured as a result of her fall on the landing in the school where she worked as a counselor. The jury's failure to award future damages, and future lost wages and their conclusion, by not awarding plaintiff's husband damages for loss of consortium, is contrary to a fair interpretation of the uncontroverted evidence and constitutes a material deviation from what would be reasonable compensation. No medical evidence was offered by defendant to refute evidence by Zimmerman that she is incapable of returning to work. (See Ramos v. New York City Hous. Auth., 280 AD2d 325, 326; 721 NYS2d 21 [1st Dept. 2001]; Pares v. La Prade, 266 AD2d 852, 697 NYS2d 413 [1st Dept. 1999]; [*5]Kriesel v. May Dept. Stores Co., 261 AD2d 837, 689 NYS2d 589 [4th Dept. 1999]; Corsaro v. Mt. Calvary Cemetery, Inc., 258 AD2d 969, 685 NYS2d 512 [4th Dept. 1999]; Grasso v. American Brass Co., L.P., 212 AD2d 994, 624 NYS2d 690 [4th Dept. 1995]). The uncontroverted evidence established that Zimmerman suffered a permanent injury and still suffers from uncontrolled seizures which forced her to leave her profession, left her unable to drive a car, affected her daily living activities which caused extreme anxiety and stress which interfered with her ability to socialize and adversely affected her intimacy with her husband.
A jury's verdict may be set aside and a new trial granted when the jury's determination is palpably incorrect and a substantial injustice would occur would the verdict be sustained (see Finkel v. Benoit, 211 AD2d 749, 750 [2d Dept. 1995]).
The jury's failure to award damages for past pain and suffering that adequately compensates Zimmerman for the pain and suffering and loss of enjoyment of life she experienced from the date of the accident to the date when the jury rendered its verdict, which covered a period of approximately six years, constitutes substantial injustice. In addition, the evidence presented by Zimmerman regarding the permanency of her medical condition was not challenged by medical testimony offered by defendant disputing the permanency of her condition. Therefore, this court also finds that the failure to award damages for future pain and suffering, future loss of earnings, and loss of consortium is against the weight of credible evidence.
The determination that a jury's award deviates materially from what would be reasonable compensation requires an evaluation of prior awards in similar personal injury cases which is utilized to provide guidance to the court in resolving disputed contentions regarding the adequacy or inadequacy of a verdict. (Kligman v. City of New York, 281 A.D. 93, 117 NYS2d 436 [1st Dept. 1952]). The "deviates materially" standard although directed specifically to reviews undertaken by appellate courts has been applied to the trial court when post trial motions, inter alia, are addressed to excessive or inadequate awards. (see Gasperini v. Center for Humanities, Inc., 518 U.S. 415, 116 S. Ct. 2211, 135 L. Ed. 2d 659 [1996] reviewing New York Law; Inya v. Ide Hyundai Inc., 209 AD2d 1015, 619 NYS2d 440 [4th Dept. 1994]; Cochetti v. Gralow, 192 AD2d 974, 597 NYS2d 234 [3d Dept. 1993]; Shurgan v. Tedesco, 179 AD2d 805, 578 NYS2d 658 [2d Dept. 1992] ).
The trial court, therefore, in reviewing a jury award must consider the nature of the injury
sustained by the plaintiff, plaintiff's age, the physical condition of the plaintiff prior to the
occurrence, the permanency of the injury sustained, plaintiff's ability to return to gainful
employment, the pain, both physical and emotional, experienced and to be experienced in the
future, and the extent of future hospitalization. The essence of this process was summarized by
the Court of Appeals in Caprara v. Chrysler Corp., 52 NY2d 114, 417 NE2d 545, 436
NYS2d 251 (1981), where the court observed:
"It goes without saying that [the] court, lacking clairvoyance, in evaluating a verdict
intended to compensate for a projected long lifetime of pain, suffering, helplessness and all other
tangible and intangible losses that were sure to follow, faced an unusually difficult judgmental
responsibility, for the fulfillment of which no less than a sophisticated elasticity will ever do. In
no two cases are the quality and quantity of such damages identical. As has been pointed out by
[*6]pragmatists and theorists who have wrestled with the problem
of how damages in such cases may justly be arrived at, evaluation does not lend itself to neat
mathematical calculation..." (id at 126-127).
Turning to cases involving traumatically induced epilepsy: plaintiff Morag
Sinkins brought a lawsuit against the City of New York in New York County. The plaintiff, 52,
an actress and a waitress was struck by a truck and in addition to sustaining a fracture of her face,
she also claimed that she was suffering from epilepsy necessitating surgery such as a cranial
lobectomy. The action was settled during the trial for $5.5 million, (Morag Sinkins v. City of
New York, 2008 WL 4488582 [Verdict and Settlement Summary, Sup. Ct., NY County
2008, Figueroa, J., Index No. 0108847/2006]). In Victoria Batiste v. City of New York,
plaintiff, a police officer was allegedly injured when his partner fell asleep which caused their car
to crash. Plaintiff began experiencing epileptic seizures two days after his release from a hospital.
As a result plaintiff was unable to return to work. Here, although there was presented conflicting
medical testimony the action was settled for $2 million. (Victoria Batiste v. City of New
York, 2008 WL 3914047 [Verdict and Settlement Summary, Sup. Ct., Kings County 2008,
Hinds-Radix, J., Index No. 1674/04]). In French v. Schiavo, 9 AD3d 279, 780 NYS2d 131 [1st Dept. 2004];
plaintiff, who was struck by a motor vehicle, brought an action for personal injuries recovered a
verdict that was remanded, inter alia, because the verdict deviated materially from what
would be reasonable compensation. After restoring this case plaintiff asserted a claim for post
traumatic occipital lobe epilepsy. Prior to going on disability, plaintiff was earning $83,000 per
year. Upon the retrial, plaintiff was awarded $7.4 million (French v. Schiavo, 2005 WL
3440569 [Verdict and Settlement Summary, Sup. Ct., NY County 2005, Stackhouse, J., Index
No. 100207/98]. In Flynn v. General Motors Acceptance Corp., 179 Misc 2d 555, 688
NYS2d 374, 1998 WL 2026526 (Verdict and Settlement Summary, Sup. Ct., NY County 1998,
Gammerman, J., Index No. 119416/95), the jury made the following awards: $725,000 for past
pain and suffering, $300,000 for future medical expenses, $9,275,000 for future pain and
suffering for 55 years. The trial court refused to reduce the award since plaintiff was a young
honor graduate who sustained epileptic seizures which cannot be controlled by medication and
she may require brain surgery in the future. And, finally, Broderson v. Bloomingdales
was an action also brought in New York Supreme Court that was settled in 2006 for $3,287,500.
In this case plaintiff was allegedly injured when he tripped and fell because of a torn carpet
which left him permanently disabled as a result of traumatically induced seizures (Broderson
v. Bloomingdales, 2006 WL 1113683 [Verdict and Settlement Summary, Sup. Ct., New
York County 2006, Index No. 108584/03]).
CONCLUSION
Plaintiff's motion is therefore granted to the extent of directing a new trial on damages unless within 20 days after services of a copy of this order with notice of entry, defendant stipulates to the entry of a judgment as follows:
(a) the sum of $250,000 for past pain and suffering
(b) the sum of $300,000 for past lost wages
( c) the sum of $500,000 for future pain and suffering
(d) the sum of $300,000 for future lost wages, and as to plaintiff's husband Stephen Chanowsky the sum of $50,000. [*7]
Defendant's cross motion is denied.
This constitutes the decision and order of this court.
Dated: October 29, 2008
George D. Salerno, J.S.C.
Attorney for Defendants
Michael A. Cardozo
Corporation Counsel
The City of New York and
The Dept. Of Educ. Of
The City of New York
198 East 161st Street, 3rd Floor
Bronx, New York 10451
By: Erious Johnson, ACC
(718) 590-3910
Attorneys for Plaintiffs
Seligson, Rothman & Rothman, Esqs.
Of Counsel to Jeffrey Shapiro & Associates
April Zimmerman & Stephen Chanowsky
401 Broadway
New York, New York 10013
(212) 966-5020
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