| Huff v Rodriguez |
| 2007 NY Slip Op 09261 [45 AD3d 1430] |
| November 23, 2007 |
| Appellate Division, Fourth Department |
| Yvette Huff, Respondent, v Anita L. Rodriguez, Formerly Knownas Anita L. Rosario, et al., Appellants. (Appeal No. 5.) |
—[*1] Connors & Vilardo, LLP, Buffalo (Lawrence J. Vilardo of counsel) and Wayne C. Felle,P.C., Williamsville, for plaintiff-respondent.
Appeal from an amended judgment of the Supreme Court, Erie County (Frank A. Sedita, Jr.,J.), entered October 24, 2006 in a personal injury action. The amended judgment, upon a juryverdict in favor of plaintiff and against defendants, awarded plaintiff the sum of $6,931,288.
It is hereby ordered that the amended judgment so appealed from be and the same hereby isunanimously reversed on the law without costs, the post-trial motion is granted in part, theverdict on liability is set aside, the verdict on damages is set aside in part, and a new trial isgranted on liability and, in the event that the new trial results in a finding of liability againstdefendants, a new trial is granted on damages for past and future loss of earnings, future medicalexpenses and future pain and suffering only unless plaintiff, within 30 days of service of a copyof the order of this Court with notice of entry, stipulates to reduce the award of damages for pastloss of earnings to $112,980, future loss of earnings to $520,000, future medical expenses to$157,440 and future pain and suffering to $3,000,000.
Memorandum: Plaintiff commenced this action seeking damages for injuries she sustained ina motor vehicle accident while a passenger in a vehicle owned by defendant Enrique Rodriguezand operated by Anita L. Rodriguez, formerly known as Anita L. Rosario (defendant). Followinga bifurcated trial, the jury found defendant 100% liable for the accident and awarded damagesexceeding $7 million. Supreme Court denied defendants' post-trial motion to set aside theverdicts and an amended judgment was entered.
Contrary to the contention of defendants, the court properly denied their motion for summaryjudgment dismissing the complaint inasmuch as they failed to meet their initial burden ofestablishing as a matter of law that defendant was not negligent. "Negligence cases by their verynature do not usually lend themselves to summary judgment, since often, even if all parties are inagreement as to the underlying facts, the very question of negligence is itself a question for jurydetermination" (Ugarriza v Schmieder, 46 NY2d 471, 474 [1979]). Indeed, the jury isoften faced [*2]with the question whether a party's conduct isreasonable (see Chilberg v Chilberg,13 AD3d 1089, 1090 [2004]; Cullipher v Traffic Markings [appeal No. 3], 259AD2d 992 [1999]).
The evidence submitted by defendants in support of their motion established that defendantdrove her vehicle from a parking lane into the flow of traffic, was attempting to turn either to herleft or to make a U-turn, and her vehicle was struck by a vehicle proceeding in the same lane oftraffic. It is well settled that drivers have a "duty to see that which through the proper use of[their] senses [they] should have seen" (Lupowitz v Fogarty, 295 AD2d 576, 576 [2002];see generally Weigand v United Traction Co., 221 NY 39, 42 [1917]). Even assuming,arguendo, that defendant used her turn signal and looked for oncoming cars, we conclude that theevidence submitted by defendants in support of their motion raises issues of fact rather thaneliminating them, i.e., whether defendant failed to see what was there to be seen (see e.g. Williams v Persaud, 19 AD3d686 [2005]; Rivera v Frontier Tel.of Rochester, Inc., 13 AD3d 1065 [2004]) and whether her conduct in pulling into theoncoming lane of traffic and turning was reasonable under the circumstances. We therefore neednot address the sufficiency of plaintiff's opposing papers (see Winegrad v New York Univ.Med. Ctr., 64 NY2d 851, 853 [1985]).
We conclude that reversal of the amended judgment is required, however, because the courterred in admitting in evidence a police report containing a police officer's description of theaccident and in permitting that officer to testify with respect to the cause of the accident.Although a police report generally is admissible as a business record (see CPLR 4518; Silverman v Sciartelli, 26 AD3d761, 762-763 [2006]), statements contained in the report concerning the cause of an accidentconstitute inadmissible hearsay unless the reporting officer witnessed the accident (see Matterof Travelers Indem. Co. v Morales, 188 AD2d 350 [1992]; Turner v Spaide, 108AD2d 1025, 1026 [1985], lv denied 66 NY2d 601 [1985], rearg denied 66 NY2d1036 [1985]), the reporting officer is qualified as an expert (see Miller v Alagna, 203AD2d 264 [1994], lv denied 84 NY2d 805 [1994]; see also Silverman, 26 AD3dat 762-763), or the statements meet some other exception to the hearsay rule (see generallyMatter of Leon RR, 48 NY2d 117, 122-123 [1979]; Johnson v Lutz, 253 NY 124,128 [1930]). It is undisputed that the officer who authored the report and testified at the trial didnot witness the accident and was not qualified as an expert. Contrary to plaintiff's contention, thestatements in the report describing the accident and the officer's trial testimony concerning thecause of the accident were inadmissible because the source of the information was neveridentified (see Holliday v Hudson Armored Car & Courier Serv., 301 AD2d 392, 396[2003], lv dismissed in part and denied in part 100 NY2d 636 [2003]; Canty v NewYork City Health & Hosps. Corp., 158 AD2d 271, 273 [1990]; Murray v Donlan, 77AD2d 337, 346 [1980], appeal dismissed 52 NY2d 1071 [1981]; see generally LeonRR, 48 NY2d at 122-123).
Although the officer testified that he obtained the information in his report from the"drivers," he failed to state which of the two drivers provided the information. If the officerreceived the information from the driver of the second vehicle, the information was exculpatoryand thus does not fall within the hearsay exception for a party admission or a statement againstinterest (see Cover v Cohen, 61 NY2d 261, 274 [1984]). Thus, those portions of thereport discussing the cause of the accident and the testimony of the officer in which he discussedhis conclusions concerning the cause of the accident were improperly admitted at trial (seeid.). We conclude that the erroneous admission of those portions of the report and theofficer's testimony "cannot be deemed harmless because the report [and the officer's testimony]bore on the ultimate issue to be determined by the jury" (Hatton v Gassler, 219 AD2d697, 697 [1995]; see Conners v Duck's Cesspool Serv., 144 AD2d 329 [1988]; Caseyv Tierno, 127 AD2d 727 [1987]).Defendants further contend that the damages award is excessive with respect to past andfuture loss of earnings, future medical expenses and past and future pain and suffering. We agreewith defendants, in part. "It is axiomatic that loss of earnings must be established with [*3]reasonable certainty . . . and the initial burden ofproving lost wages is on the [plaintiff]" (Faas v State of New York, 249 AD2d 731,732-733 [1998]; see Swedowski vEthicon, Inc., 6 AD3d 1198 [2004]). "Recovery for lost earning capacity is not limited toa plaintiff's actual earnings before the accident, however, and the assessment of damages mayinstead be based upon future probabilities" (Kirschhoffer v Van Dyke, 173 AD2d 7, 10[1991]). Based on the testimony presented by plaintiff, we conclude that the highest amount thejury could have awarded her for past loss of earnings is $112,980, and the highest amount thejury could have awarded her for future loss of earnings is $520,000.
We further agree with defendants that the damages award for future medical expenses mustbe modified. As with loss of earnings, future medical expenses must be established withreasonable certainty (see Beh v JimWillis & Sons Bldrs., Inc., 28 AD3d 1227, 1228 [2006]; Patterson v Kummer Dev.Corp., 302 AD2d 873, 874-875 [2003]). Viewing the evidence in the light most favorable toplaintiff (see Strangio v New York Power Auth. [appeal No. 2], 275 AD2d 945, 946[2000]), we conclude that the highest amount the jury could have awarded plaintiff for futuremedical expenses is $157,440.
With respect to pain and suffering, "[t]he amount of damages to be awarded is primarily aquestion of fact for the jury[,] whose determination is accorded considerable deference. . .[, and, b]ecause personal injury awards, especially those for pain and suffering,are not subject to precise quantification . . . , we look to comparable cases todetermine at what point an award 'deviates materially' from what is considered reasonablecompensation" (Karney v Arnot-Ogden Mem. Hosp., 251 AD2d 780, 782 [1998], lvdismissed 92 NY2d 942 [1998]; see Kolz v Rand [appeal No. 2], 298 AD2d 982[2002]; see e.g. Gerbino v Tinseltown USA [appeal No. 2], 13 AD3d 1068, 1072).Viewing the evidence in the light most favorable to plaintiff (see Strangio, 275 AD2d at946), we conclude that the evidence established that plaintiff suffered six, or possibly seven,herniated discs and at least three annular tears in her cervical spine. The expert physiciansdescribed plaintiff's injuries as "diffuse and widespread" and as "a profound injury pattern."Additionally, plaintiff had "severe" pain in her lumbar spine caused by disc herniations in thatarea of her spine that would eventually require lumbar fusion surgery. Plaintiff also suffered fromdaily, excruciating headaches and described her pain to each examining physician as"intolerable" and "severe." Plaintiff was treated with epidural injections and underwent twopainful discogram procedures as well as a subsequent four-level discectomy fusion surgery thathad the potential to alleviate only 20% to 25% of the pain. Plaintiff wore a brace for six monthsafter the discectomy surgery and used a bone growth stimulator to enhance her recovery.Although the pain in her neck was reduced from a level 10 out of 10 to a level 8 out of 10,plaintiff did not consider the relief to be a significant improvement. The medical expertsanticipated that plaintiff would require additional fusion surgery and that she would have chronicpain for the rest of her life. Plaintiff could not perform many of the activities of daily livingwithout pain and, as a result, she suffered from depression and found it difficult to get out of bedeach day.
Based on that evidence, we conclude that the award of $500,000 for past pain and suffering,covering a period of 5½ years, does not deviate materially from what would be reasonablecompensation (see Valentin v City of New York, 293 AD2d 313 [2002]; Rountree vManhattan & Bronx Surface Tr. Operating Auth., 261 AD2d 324, 328 [1999], lvdenied 94 NY2d 754 [1999]; Gonzalez v Rosenberg, 247 AD2d 337 [1998]). Wefurther conclude, however, that the award of $5,250,000 for future pain and suffering, to cover aperiod of 42 years, deviates materially from what would be reasonable compensation (seeValentin, 293 AD2d 313 [2002]; Diaz v West 197th St. Realty Corp., 290 AD2d310, 312 [2002], lv denied 98 NY2d 603 [2002], rearg denied 98 NY2d 693[2002]; Rountree, 261 AD2d 324, 328 [1999]). We therefore conclude that the highestamount the jury could have awarded plaintiff for future pain and suffering is $3,000,000.[*4]
Finally, the record before us does not support defendants'contention that the court erred in determining the amount of collateral source offsets. Based onthe foregoing, we reverse the amended judgment, grant defendants' post-trial motion in part, setaside the verdict on liability, set aside the verdict on damages in part, and grant a new trial onliability. In the event that the new trial results in a finding of liability against defendants, we granta new trial on damages for past and future loss of earnings, future medical expenses and futurepain and suffering only unless plaintiff, within 30 days of service of a copy of the order of thisCourt with notice of entry, stipulates to reduce the award of damages for past loss of earnings to$112,980, future loss of earnings to $520,000, future medical expenses to $157,440 and futurepain and suffering to $3,000,000. Present—Smith, J.P., Peradotto, Green and Pine, JJ.