| [1] |
Supreme Court12/23/1999
Appeal from a judgment of the Supreme Court (Teresi, J.), entered July 8, 1998 in Albany County, upon a verdict rendered in favor of plaintiff.
While working as a laborer on a construction project in July 1994, plaintiff, then 46 years old, fell through a hole in the floor of a building and landed on a concrete floor 16 feet below. His injuries included a facial abrasion and fractures of the pelvis, left femur, left ankle, left wrist and fractured and dislocated fingers on the left hand. He was hospitalized for 30 days immediately following the accident, during which time two surgeries were performed. Plaintiff began a course of physical therapy while in the hospital which continued after his discharge until August 1995. He thereafter participated in a fitness program from August 1995 to July 1996. Unable to return to work as a construction laborer, plaintiff successfully completed a computer course but had not returned to work as of the time of trial. In this action against the owner of the premises and the general contractor of the project, plaintiff asserted violations of Labor Law ยงยง 200, 240 and 241. Summary judgment on the issue of liability was granted and a trial on the issue of damages only ensued.
Plaintiff testified as to his injuries, treatment, recovery and the resulting changes in his lifestyle. One of plaintiff's treating physicians, James Elting, presented detailed testimony as to plaintiff's injuries, treatment and recovery. Joel Mandel, an orthopedic surgeon who evaluated plaintiff prior to trial, testified as to plaintiff's prognosis and his inability to work. Defendants did not call the doctor who they had engaged to evaluate plaintiff and a missing witness charge was given. Plaintiff also produced the testimony of Thomas Kershner, a professional economist, on the issue of his past and projected future lost earnings. Defendants did not call their economist to testify and, again, a missing witness charge was given. Defendants did produce testimony from a rehabilitation counselor who testified that plaintiff was able to work in positions involving light, sedentary work.
The jury awarded plaintiff $38,000 for past pain and suffering, comprising a period of 3 1/2 years, and $150,000 for future pain and suffering for a period of 20 years. Plaintiff was also awarded $25,000 for past lost earnings and $75,000 for projected future lost earnings over a period of 12 years. Plaintiff moved orally to set aside the verdict as inadequate and contrary to the weight of the evidence. Supreme Court denied the motion, prompting this appeal.
Plaintiff asserts that the pain and suffering component of the award is inadequate given the multitude and magnitude of his injuries, and that the lost earnings award is contrary to the weight of the evidence and materially deviates from reasonable compensation. Defendants counter that the total award reflects a fair interpretation of the evidence, noting that plaintiff's claimed untruthfulness about his ability to work undermined his entire case, freeing the jury to disregard all of plaintiff's testimony.
Mindful that the appropriate amount of damages in a personal injury action is generally a question of fact, a reviewing court will accord considerable deference to a jury's assessment of the evidence and its resulting award (see, Douglass v St. Joseph's Hosp., 246 AD2d 695, 697). Where, however, a jury's award deviates materially from that which would constitute reasonable compensation, it may be set aside (see, CPLR 5501 ; Clarke v Selover, 260 AD2d 981; Osiecki v Olympic Regional Dev. Auth., 256 AD2d 998). Review of the adequacy of a damage award entails its comparison to awards in similar cases as well
Page 1 2 3 New York Personal Injury Attorneys
Personal Injury Lawyers
|