[T] Armstrong v. Foxcroft Nurseries2/5/2004
This opinion is uncorrected and will not be published in the printed Official Reports.
Defendant Foxcroft Nurseries, Inc. (Foxcroft) moves pursuant to CPLR 4404(a) for an order setting aside the jury verdict and judgment entered in this case and directing that judgment be entered in favor of Foxcroft upon the ground that it is entitled to judgment as a matter of law, or, in the alternative, for a new trial, upon the ground that the verdict is contrary to the weight of the evidence, and manifestly excessive.
As the one challenging the alleged excessiveness of the jury's award of damages, Foxcroft supports its motion with a series of decisions reviewing awards in cases involving similar injuries to the ones suffered by plaintiff, Shane Armstrong (Armstrong). Foxcroft urges that the cited decisions demonstrate that the award in this case "deviates materially from what is reasonable compensation " (CPLR 5501 ; Ordway v Columbia County Agricultural Society, 273 AD2d 635, 636; Lolik v Big V Supermarkets, 266 AD2d 759, 761).
Surprisingly, the first case Foxcroft cites, Rogers v Parise, 75 AD2d 513 actually suggests that the $575,000 pain and suffering award in this case does not deviate materially from reasonable compensation for one who has suffered a comminuted fracture of the tibia and fibula. Rogers declined to reduce a 1979 jury verdict of $200,000 for the pain and suffering of the rather unsympathetic plaintiff in that case who was exaggerating his injuries. According to the United States Department of Labor, Bureau of Labor Statistics Inflation Calculator (http://www.bls.gov/home.htm) , $200,000 in 1979 would have the same buying power as $506,887 does today. The $575,000 awarded to Armstrong in this case does not deviate materially from the present day value of the Rogers award. Nor is Rogers the only case cited by defendant that proves the opposite. In Johnston v Joyce, 192 AD2d 1124, the Fourth Department found that $500,000 was the maximum reasonable pain and suffering award in 1993. In present dollars that equals $636,678, which is more than the $575,000 that defendant now argues is excessive.
Armstrong supplies other cases that confirm that the pain and suffering award in this case is not excessive. In Carl v Daniels, 268 AD2d 395 the Appellate Division set the pain and suffering award at $4,800,000. The injuries there were not that much more significant than Armstrong's in this case. In Patterson v Kummer Development Corporation, 302 AD2d 873, 874, the court found that $1,000,000 was reasonable for very similar injuries. An award of $709,222 was held to be reasonable in Brownell v City of New York, 277 AD2d 31. A pain and suffering award of $750,000 was imposed by the court in Holland v Gaden, 260 AD2d 604 and $850,000 was affirmed as not excessive in Cranston v Oxford Resources Corp., 173 AD2d 757, 758 - 759.
Rogers and Johnston and the cases cited by Armstrong appear to prove that the $575,000 award is not excessive and Foxcroft's motion should be denied. Nevertheless, along with the Rogers and Johnston and many irrelevant cases, defendant cites four similar cases which actually appear to establish that the $575,000 award is wildly excessive. Jandt v Abele, 116 AD2d 699 declared that a $100,000 award was excessive and reduced it to $65,000. Stone v Williams, 97 AD2d 509 reduced the total damages from $200,000 to $100,000. Winther v Railroad Maintenance Corporation, 169 AD2d 591, 592, is more generous but establishes that all damages in this type of case cannot exceed $345,000 (reducing the award from $1,395,000). Zavurov v City of New York, 241 AD2d 491, 492, holds that $600,000 in pain and suffering is excessive and must be reduced to $300,000.
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