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Supreme Court12/23/1999
as consideration of various factors, including the life- threatening nature of the injuries, the length of hospitalization, surgeries required, complications experienced, medication needed to stabilize the patient and relieve pain, postconfinement convalescence, rehabilitative efforts and the success of treatment (see, Stedman v Bouillon, 234 AD2d 876, 877; see also, Osiecki v Olympic Regional Dev. Auth., supra).
Applying these principles to our review of the record herein, we agree with plaintiff that the jury's award for past and future pain and suffering is manifestly inadequate to constitute reasonable compensation. Notably, the testimony as to the nature and severity of plaintiff's injuries and his condition at the time of trial was uncontroverted. When first admitted to the hospital, plaintiff was at risk of bleeding to death and he was placed on a respirator to enable him to breathe. An external fixator was utilized to stabilize his pelvic injuries. He was hospitalized for a month, undergoing two surgeries. Upon his discharge from the hospital, he required the assistance of a nurse and home health aide, and needed physical therapy to become able to walk unassisted. Nerve damage to his foot resulted in a permanent foot drop and clawing of the toes, so that plaintiff now walks slowly and with a limp. He cannot sit, stand or walk for extended periods without pain or the need to stretch. He cannot perform his usual household chores or engage in many of his preaccident activities. Testimony indicated that the prognosis for his injuries is poor and some will worsen with the passage of time with the probability that future surgery will be required.
Given the nature and extent of plaintiff's injuries, his treatment therefor and prognosis thereon, an award of $38,000 for past pain and suffering and $150,000 for 20 years of future pain and suffering materially deviates from what would be reasonable compensation with reference to both the objective criteria by which such damages are assessed and in comparison to what has been determined to be reasonable compensation in cases involving comparable injuries (see, Stedman v Bouillon, supra, at 877; see also, Barrowman v Niagara Mohawk Power Corp., 252 AD2d 946, 948, lv denied 92 NY2d 817; Armbruster v Buffalo China, 247 AD2d 880, 881-882; Douglass v St. Joseph's Hosp., 246 AD2d 695, 697, supra; Sluzar v Nationwide Mut. Ins. Co., 223 AD2d 785, 785-786; Fenocchi v City of Syracuse, 216 AD2d 864, 865; Inya v Inde Hyundai Inc., 209 AD2d 1015). Consequently, plaintiff is entitled to a new trial to determine damages for past and future pain and suffering.
We reach a similar conclusion with respect to the jury's award for past and future lost earnings, which amounted to approximately $7,000 per year for past lost earnings and $6,250 per year for future lost earnings. While defendants maintain that the jury's award in this regard derived from its rejection of plaintiff's contention that he was unable to return to any type of work, we are not so persuaded since defendants tendered no evidence which could be said to support the amounts awarded by the jury. Plaintiff's earnings in 1993 amounted to $12,248 and his average earnings in the three years preceding the accident were $9,578. The only evidence before the jury as to plaintiff's past and future lost earnings was the testimony of his expert economist and that of the president of the union local which plaintiff had joined shortly before the accident to improve his employment opportunities; as noted, defendants' economist did not testify. Plaintiff's expert opined that plaintiff sustained a loss of past wages and benefits totaling $106,000 and projected future losses of $583,000. Because the jury's aw
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