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Kahl v. MHZ Operating Corp. (N.Y.App.Div. 03/09/2000)
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Supreme Court3/9/2000
Calendar Date: January 13, 2000 Appeal from an order of the Supreme Court (Czajka, J.), entered March 3, 1999 in Ulster County, which granted defendant's motion to set aside the verdict as to damages.
MEMORANDUM AND ORDER
In April 1995, plaintiff John F. Kahl (hereinafter plaintiff), who was then 73 years old, fell while playing ping pong on defendant's premises and fractured his hip. Following the trial of the action, the jury found that defendant was negligent, that its negligence was a proximate cause of plaintiff's injuries and that there was no comparative negligence on plaintiff's part; it awarded plaintiff damages of $250,000 for past pain and suffering and $200,000 for future pain and suffering (based on a life expectancy of nine years) and awarded $50,000 on his spouse's derivative cause of action. Supreme Court granted defendant's posttrial motion pursuant to CPLR 4404(a) to the extent of ordering a new trial on the issue of damages unless plaintiffs stipulate to a reduction of the verdict to $125,000 for plaintiff's past pain and suffering, $100,000 for plaintiff's future pain and suffering and $25,000 on the derivative claim. Plaintiffs appeal.
We affirm. The evidence adduced at trial established that plaintiff sustained a fracture of the intertrochanteric area of his right hip. Plaintiff underwent surgery in which a large screw was inserted through the femur and up into the ball of the hip joint and secured to a stainless steel plate extending down and affixed to the femur with screws. Due to plaintiff's advanced age, no plans were made to remove the securing plate and screws. Plaintiff was hospitalized for approximately 12 days and was then transferred to a rehabilitation clinic, where he remained for an additional seven days. Plaintiff made a good recovery from the surgery and was able to walk bearing full weight on his right leg by late July 1995. Plaintiff continued to progress over the ensuing months but he was not able to walk as far as he previously could and had continued complaints of pain in the area of the plate despite the absence of any evidence of arthritic changes. Nonetheless, after the accident, plaintiff could complete a mile walk, with a rest after one-half mile, could drive a car without restrictions, could ride on his lawn mower for 45 minutes at a time and was able to travel with his wife to Florida in 1996, to the Caribbean in 1997 and again to Florida in 1998.
The proper standard to be applied in determining a motion to vacate an award as excessive is whether the jury's verdict "deviate materially from what would be reasonable compensation" (CPLR 5501 ; see, Duncan v. Hillebrandt, 239 AD2d 811; Wendell v. Supermarkets Gen. Corp., 189 AD2d 1063, 1064). "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 Mem. Hosp., 251 AD2d 780, 782, lv dismissed 92 NY2d 942 [citations omitted] ). Here, viewing like cases and according Supreme Court appropriate deference due to its superior position of being able to observe the evidence first hand and assess its effect upon the case (see, Figliomeni v Board of Educ. of City School Dist. of Syracuse, 38 NY2d 178, 183; Santucci v. Govel Welding, 168 AD2d 845, 846), we conclude that the verdict was properly set aside as excessive unless the parties stipulate to the amounts stated by Supreme Court.
Notably, cases involving plaintiffs with similar or worse injuries have been judicially adjusted to lesser amounts. For instance, in Boinoff
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