N.Y. State Supreme Court awards $80,000 for pain, suffering

Where the jury awarded zero dollars in damages to the infant plaintiff after finding the defendant negligent in running the plaintiff over with her car, the plaintiff moved for an order to set aside the jury verdict regarding damages.

Reviewing the facts in Delbert Hargis, Jr., Individually and as Parent and Natural Guardian of De'Andre Hargis v. Phyllis J. Sayers, New York State Supreme Court, Jefferson County Judge Joseph D. McGuire granted the plaintiff's order and directed damages of $80,000 for past pain and suffering. The judge found that any award less than $80,000 would be a material deviation from the statutory standard, CPLR 5501.

The Facts

The plaintiff, De'Andre Hargis, was two-and-a-half years old when he was run over twice by the defendant, Phyllis J. Sayers, while Hargis was playing in or near the driveway of his home.

Sayers' car stopped on Hargis, who was under the wheel. Hargis spent one week in the hospital. An x-ray revealed an oblique fracture to his left femur.

Hargis had an operation and was placed in a partial body cast. He suffered medical contusions and abrasions over many areas of his body and a pulmonary contusion.

Medical records showed the presence of permanent scarring about the body. After the cast was removed, he walked with a limp and there was extensive skin discoloration on his cheek, arm and back.

Nonetheless, Hargis made a good recovery and no future surgical or other medical intervention was necessary.

On the date of the trial, Hargis was eight years old. A jury trial was conducted, at which the court directed a verdict in Hargis' favor on the issue of liability and negligence.

The jury returned a verdict awarding zero dollars for past pain and suffering and zero dollars for future pain and suffering.

Hargis applied for an order to set aside the jury verdict regarding damages.

Court's Analysis

A damages award by a jury must be set aside if it deviates materially from what would be reasonable compensation, (CPLR 5501[c]); see Inya v. Ide Hundai, Inc., 209 AD2d 1015, (Fourth Dept. 1994). If the trial court sets aside the verdict, it may order a new trial on the issue of damages only, CPLR 4404(a).

The former rule to set aside a verdict only when it shocks the conscience is no longer applicable, Prunty v. YMCA of Lockport, 206 AD2d 911.

[I]t has been said that material deviation from reasonableness is a lesser standard to permit courts involvement in setting aside a verdict, with the courts given greater power, the court wrote, citing Consorti v. Armstrong World Industries, Inc., 72 F3d 1003, 1013.

The court, when determining claims of inadequate damages, reviews prior verdicts in similar cases, see Gasperini v. Center for Humanities, Inc., 518 US 415; Keenan v. Waldorf Carting Co., 2004 WL 1961592.

The court will [r]eview ... the adequacy of a damage award [and compare the award] to awards in similar cases as well as [consider] 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, post-confinement convalescence, rehabilitative efforts and the success of treatment, Edwards v. Stamford Health Care Society, Inc., 269 AD2d 825, 827.

Judge McGuire noted that large sums have been awarded for a fractured femur, with other injuries, such as $1.5 million, Lopez v. Gomez, 305 AD2d 292.

For a leg fracture, $6,000 was rejected by the courts as inadequate, Simmons v. Dendis Construction, Inc., 270 AD2d 919 Fourth Dept. 2000.

The court found no cases where zero dollars was awarded for the injury.

The judge concluded that [w]ith an infant of tender years, it is especially difficult for that person to articulate the pain and suffering undergone. Similarly, when the incident is said to have occurred at the age of two-and-one-half, recollection of the events would be near impossible. However, such recollection should not serve to prevent the court from making a suitable and justifiable award for the bodily insult suffered by the child.

The court considered the nature of the injuries, the delay in ascertaining the fracture, the length of the hospitalization, the surgery required, medication needed to relieve pain, the post confinement recovery time, the physical therapy required and accompanying rehabilitation, the future medical appointments post hospitalization and the absence of need for future medical attention, see Edwards, 267 AD2d 825.

Conclusion

Judge McGuire granted an award of $80,000 for past pain and suffering based on the facts of this case. The court found that any award less than that amount would be a material deviation from the statutory standard, CPLR 5501.

With regard to future pain, Hargis' father testified that no such additional medical intervention was contemplated. The court found no evidence for the need of future treatment.

Hargis' motion for an order setting aside the jury verdict of zero dollars in damages was granted. The court directed a new trial on damages only unless Sayers stipulated to increase the verdict to $80,000 for past pain and suffering.

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