| Godfrey v G.E. Capital Auto Lease, Inc. |
| 2011 NY Slip Op 07903 [89 AD3d 471] |
| November 10, 2011 |
| Appellate Division, First Department |
| Kenzie Godfrey, Respondent-Appellant, v G.E. CapitalAuto Lease, Inc., Respondent, and Balhar Singh et al., Appellants-Respondents, et al.,Defendants. |
—[*1] Ronemus & Vilensky, LLP, Garden City (Lisa M. Comeau of counsel), forrespondent-appellant. Herzfeld & Rubin, PC, New York (Linda M. Brown of counsel), for respondent.
Order, Supreme Court, Bronx County (Kenneth L. Thompson, J.), entered on or about April29, 2009, which granted plaintiff's and defendants Altieri's and Sgarlato's motions to set aside thejury verdict finding Altieri 100% responsible for the accident to the extent of apportioning 50%of the liability to defendant Adjei; denied plaintiff's motion to set aside the verdict as todefendant G.E. Capital Auto Lease, Inc.; and granted G.E.'s and Altieri's and Sgarlato's motionsto set aside the verdict and order a new trial on damages and the extent to which plaintiff's failureto use an available seat belt proximately caused her injuries, unanimously modified, on the lawand the facts, to deny plaintiff's and Altieri's and Sgarlato's motions to set aside the jury verdictfinding Altieri 100% responsible for the accident, to reinstate the awards for past and future lostearnings and for future medical costs, to award plaintiff $133,652 for past medical costs, and todirect a new damages trial on the issue of future pain and suffering unless, within 30 days afterservice of a copy of this order, plaintiff stipulates to a reduction of the award for future pain andsuffering from $3,332,000 to $2.5 million, all such damages awards subject to the new trial onthe issue of mitigation directed by the court; and otherwise affirmed, without costs. The Clerk isdirected to enter judgment dismissing the complaint as against Adjei.
On August 30, 2001, plaintiff was a passenger in the rear seat of a taxi operated by defendantAdjei. It collided at an intersection, controlled by traffic lights in each direction, with anautomobile operated by defendant Altieri. Altieri was driving the vehicle with the consent ofdefendant Sgarlato, who in 1995 leased the car from defendant G.E. Capital Auto Lease, Inc.(GE). She purchased it outright from GE in 1999. Although she entered into a retail installmentsales contract with GE at that time, Sgarlato did not complete the paperwork necessary to transfertitle to herself until 2002, after the accident.
Altieri testified at trial that she had the right-of-way and was driving within the speed limit.Adjei failed to comply with a subpoena requiring him to testify. However, according to hisdeposition testimony, which was read to the jury, he proceeded within the speed limit through agreen light. Plaintiff was not wearing a seat belt and she hit her head on the taxi's partition. Shedid not recall whether the taxi was equipped with a seat belt. An accident reconstructionspecialist retained by Altieri and Sgarlato testified that the particular model of the taxi driven byAdjei was equipped with rear shoulder and lap belt harnesses. Had the seat belts been worn, theexpert stated, they would have restrained plaintiff from contacting the partition. He conceded thatplaintiff still could have hit her head on the seat in front, but the impact would not have been asforceful.
Plaintiff was a college student concentrating in physics at the time of the accident. Shetestified that in the week following the accident, she could not focus or keep her normal pace,and she felt dizzy and had terrible pain in her head. She missed a number of her classes, andsometimes slept for 20 hours at a time. About a week after the accident, she sought treatment atthe emergency room at Bellevue Hospital, where she was admitted for two days. Plaintifftestified that when she resumed her classes that fall, she had difficulty keeping her schedulestraight, doing easy equations, following instructions, and retaining things she had read. Shestated that she registered with the office for students with disabilities, which allowed her moretime for assignments and exams and gave professors leeway in grading. She completed thesemester and passed all of her classes, but ultimately failed to complete her bachelor's degree.
Plaintiff also claimed at trial that after the accident she began feeling depressed and lethargic,and began to experience fear of leaving her house, sensitivity to lights, and difficulty with noiseand crowds, which made her feel very disoriented. She sought treatment from a psychotherapist,and continues to be treated by a neuropsychologist, who sets goals and helps keep her organized.A few months after the accident, plaintiff averred, she began experiencing seizures, whichinvolved blackouts, severe muscle spasms, cramping in her extremities, and incontinence. Shemaintained that she suffers severe headaches almost daily and takes several medications. Sheparticipates in a program which provides her with some home care assistance and a living skillscoordinator to help with activities of daily living. She testified that she has tried to work, takingadministrative jobs and hostess positions at restaurants, but she is frequently confused and unableto sustain the necessary pace.
Plaintiff's medical evidence established that she suffered a traumatic brain injury, a diagnosisthat was not rebutted by any medical evidence submitted by defendants. Her treating psychiatristtestified that plaintiff's symptoms were causally related to the accident, that her prognosis was"poor," and that she will need psychiatric care for the remainder of her life. Her treatingneurologist similarly opined that plaintiff's condition was permanent, and was solely related tothe trauma suffered because of the accident. He predicted that plaintiff would suffer from seriouslifelong impairments to her memory, verbal skills, and reasoning ability, as well as depression,and would need medication that impairs her liver and causes other side effects. According to theneurologist, plaintiff will require home assistance for the rest of her life, as well as regularneurological visits, and her condition and the medications will make her unable to work. Aneuropsychologist who treated plaintiff rendered a similar opinion.[*2]
In support of her claim for economic damages, plaintiffproffered the testimony of Brian Schuster, a neuropsychologist. Dr. Schuster testified thatplaintiff had scored in the "very superior" range on a battery of nonverbal assessment tests headministered, and that she is a "very bright person." However, on verbal assessment tests, hetestified, plaintiff's scores were "average." Although he noted that she exhibits knowledge ofcollege level math, she solved problems slowly. Dr. Schuster opined that plaintiff had sustainedan injury in the left hemisphere of her brain, which is associated with language, and that,although she demonstrated no problem with her motor skills, her language skills are "average."Plaintiff could not be expected to hold a job because an employer could not rely on her to showup or be able to function if she did.
Dr. Schuster opined that had plaintiff not been injured, she would have been able to performany number of highly-skilled professional jobs, even though she had no clear vocation before theaccident. These jobs were identified by entering plaintiff's profile in a database maintained by theDepartment of Labor. They included certain positions which Dr. Schuster testified wereconsistent with plaintiff's interests in physics and mathematics, such as civil engineer andpharmacist. According to Dr. Schuster, the average salary for these jobs was $72,981.47 per year,as reflected in 2005 wages. Finally, Dr. Schuster testified regarding a life-care plan he hadprepared regarding plaintiff, which identified the various elements of care, tests, medication andequipment plaintiff would need over the course of her life, as well as the current cost of eachitem.
Plaintiff also called Dr. Alan Leiken, an expert economist. Dr. Leiken opined that, assumingplaintiff would have left the work force at age 62, her total income loss would be $5,373,411,which includes an additional 25% in employer-provided benefits. Dr. Leiken's testimony alsoincluded his opinion about the cost of lifetime care of plaintiff based on her statistical lifeexpectancy of 80.6 years. He stated that the total cost would be $5,982,751. The parties stipulatedat trial that plaintiff had already incurred medical expenses in the amount of $133,652.
Defendants called two experts who disputed plaintiff's request for lost earnings. Dr. ArmandoRodriguez, a professor of economics and finance, testified that Dr. Leiken's and Dr. Schuster'sreports regarding plaintiff's claimed loss of earnings were methodologically flawed andinsupportable. Specifically, he opined that no legitimate basis existed for Dr. Schuster'sprojection, utilized by Dr. Leiken in his calculations, that plaintiff would be able to earn $72,900upon graduation, since she had no proven track record of earning significant income. Dr.Rodriguez also maintained that additional flawed assumptions in Dr. Leiken's report furtherundermined his calculations of future lost earnings and medical expenses. For instance, hetestified, Dr. Leiken had failed to account for job maintenance expenses, erroneously assumedthat plaintiff would have worked continuously until the age of 62 without any period ofunemployment, applied too high a percentage to calculate annual wage increases, and incorrectlydouble-counted benefit amounts which are already factored into wages. He stated that Dr.Leiken's figures for annual increases in medical care were also overinflated by .5%, whichamounts to a significant difference when calculated over 30 years.
Rosalind Zuger, an expert vocational consultant, testified that she looked at medical records,interviewed plaintiff, and administered four "map reading" tests, which are used to assesstraumatic brain injury victims' ability to process information. In Ms. Zuger's opinion, plaintiffhad 100% accuracy, performed with no hesitation, and organized the material and informationwell. She pointed out that plaintiff had apparently not tried any vocational program [*3]offered by rehabilitation agencies to evaluate what she was able todo, even though the services of the New York State Rehabilitation Agency is free of charge.Zuger testified that in her view, plaintiff is capable of working and that she has placedindividuals in jobs who have disabilities similar to or worse than plaintiff's.
At the close of the evidence, plaintiff moved for a directed verdict against Adjei based on hisfailure to appear and testify at trial. The court denied the motion. However, it gave a missingwitness charge, instructing the jury that, if it did not find Adjei's explanation for his absencereasonable, it could conclude that his testimony would not have supported his case, and draw thestrongest inference against him.
The court also denied plaintiff's request for a detailed charge on the issue of ownership underthe Vehicle and Traffic Law, but charged that the jury "must consider . . . whetherGE is also an owner of the vehicle owned by . . . Sgarlato," that GE "cannot be heldresponsible for this accident unless [the jury] determine[d] that GE was the owner of the Jeep atthe time the accident occurred," and that plaintiff bore the burden of proof by a preponderance ofthe evidence. GE objected to any charge on ownership.
The jury returned a verdict that Altieri was completely responsible for the accident. It foundthat GE was not an owner of the vehicle operated by Altieri at the time of the accident. The juryawarded plaintiff damages for past pain and suffering in the amount of $260,000, and in theamount of $3,332,000 for future pain and suffering. It awarded her $286,171 for past lostearnings and $928,219 for future lost earnings. As for future medical costs, the jury awardedplaintiff $5,982,751. It did not award any money for past medical expenses. Finally, although thejury found that "a reasonably prudent passenger in plaintiff's position [would] have used anavailable seatbelt," it found that none of her injuries were caused by her failure to use a seat belt.
All parties moved to set aside the verdict. Plaintiff moved to set aside the verdict that Adjeiwas not negligent, and that GE was not an owner of the vehicle. She also sought an increase inthe damages awarded by the jury for her past and future lost earnings. Altieri and Sgarlatocross-moved to set aside the verdict as to Altieri's and Adjei's relative degrees of culpability; fora new trial on the issues of liability and damages; and for a new trial on the issue of plaintiff'sfailure to use an available seat belt. GE conditionally cross-moved, in the event the courtdetermined that GE was an owner of the vehicle, to set aside the damages verdict and for a newtrial on the issue of damages; and to set aside the jury's finding that plaintiff's injuries were notcaused by her failure to use an available seat belt.
The court granted plaintiff's motion for a directed verdict against Adjei and directed thatjudgment be entered against him finding him negligent in the operation of his taxi andapportioning 50% liability against him. This was based "upon the unrebutted testimony" ofAltieri that Adjei ignored a red light and the fact that he did not appear at trial. The court deniedplaintiff's motion to set aside the verdict with respect to GE, holding that GE was not, as a matterof law, an owner of the Jeep. Finally, without explanation, the court granted a new trial ondamages and the issue of "to what extent her failure to use an available seatbelt contributed to herdamages."
A jury's verdict may be reversed on the grounds of legal insufficiency only where "there issimply no valid line of reasoning and permissible inferences which could possibly lead rational[people] to the conclusion reached by the jury on the basis of the evidence presented at trial"(Cohen v Hallmark Cards, 45 NY2d 493, 499 [1978]). Here, applying that standard, thejury's conclusion that Altieri was fully responsible for the accident should not be disturbed.Despite the [*4]conflicting testimony, the jury could fairly haveconcluded that Adjei failed to see Altieri, not because he was negligent, but because Altieri'svehicle either was blocked from view by other cars or drove through a red signal (see D'Onofrio-Ruden v Town ofHempstead, 29 AD3d 512, 513-514 [2006]). The record presents no grounds fordisturbing the jury's determination that Adjei's version of events was more credible than Altieri's(see Lunn v County of Nassau, 115 AD2d 457, 458-459 [1985]).
Further, to the extent it apportioned 50% of the responsibility to Adjei as a penalty for hisfailure to appear at trial, the court erred. The missing witness charge was a sufficient sanction forAdjei's absence and there is no basis for disturbing the jury's conclusion that, notwithstanding theadverse inference, Altieri was not credible in her testimony as to how the accident occurred.
Concerning GE's liability, title to a motor vehicle is transferred when the parties intend suchtransfer to occur (see Potter v Keefe, 261 AD2d 864 [1999]). Thus, title to a vehicle maypass to a purchaser when she takes delivery of it, notwithstanding that formal registration of thevehicle in the purchaser's name occurs later (see Pearson v Redline Motor Sports, 271AD2d 222 [2000]). Here, even though the registration and license plates of the vehicle driven byAltieri were still in GE's name at the time of the accident, the evidence established that GEdelivered an executed certificate of title and possession to Sgarlato on September 10, 1999.Although Sgarlato did not retitle the vehicle in her name until after the accident, the titledocument evidences that the sale occurred, and GE became a mere lienholder, as of September10, 1999 (see Vehicle and Traffic Law §§ 128, 2113 [b], [c]; Potter,261 AD2d at 865-866). It is academic that the court refused to charge the jury on the meaning of"ownership" under the Vehicle and Traffic Law. The facts firmly establish that, under anydefinition of the term, GE was not still an owner at the time of the accident. Indeed, the courtcould have decided the question as a matter of law.
We turn now to the damages awards. Proof of lost earnings must be established withreasonable certainty (Estate of Fergusonv City of New York, 73 AD3d 649, 650 [2010]). In considering whether a jury'sdamages award is inconsistent with the evidence, we are, again, guided by the notion that thejury's conclusions should be overturned only where they are essentially irrational (seeFreeman v Kirkland, 184 AD2d 331, 332 [1992], citing Cohen v Hallmark Cards, 45NY2d 493 [1978]). Plaintiff argues that she established all of her lost earnings within thatstandard through the testimony of Dr. Schuster and Dr. Leiken, and asks us to increase the juryaward accordingly. Defendants, on the other hand, urge us to adopt the testimony of their experts,who opined that plaintiff was not entitled to any lost earnings award. They place much emphasison the fact that plaintiff continued to attend classes after the accident, and fault her for notsubmitting any evidence to support her testimony that she received special accommodations fromthe school's office for students with disabilities.
The jury's damages award apparently reflects the fact that the jury accepted portions of thetestimony of both sets of experts. It was not irrational for the jury to conclude that plaintiff'sability to realize her full work potential would be impaired because of the accident. After all,defendants presented no medical evidence to rebut plaintiff's medical experts' opinions that shesuffered a traumatic brain injury that made it very difficult for her to carry out routine activities.Moreover, the jury was entitled to believe plaintiff's testimony that she was able to continuesome courses after the accident only with accommodations, notwithstanding the lack ofadditional evidence of such accommodations. On the other hand, it was not necessarilyinconsistent for the jury to reject plaintiff's experts' opinions that she was utterly incapable of[*5]working in any capacity, or to question theircalculations of what her earning capacity would have been if the accident did not occur. Indeed,the jury's lost earnings award reflects that the jury simply did not view the claim for lost earningsas an all-or-nothing proposition, but attempted to strike a balance between the parties' positions.Accordingly, the court erred in rejecting the jury's findings on lost earnings.
As for medical expenses, defendants argue that the award to plaintiff of the entire cost of thelife-care plan espoused by Dr. Leiken is inconsistent with the jury's slashing of the lost earningssought by plaintiff. We disagree. The jury did find that plaintiff would forfeit nearly $1,000,000in earnings over the course of her life as a result of the accident. This confirms that the jurybelieved that plaintiff sustained a significant impairment to her health, and it would not havebeen irrational for it to conclude that she required all of the medical attention included in theplan. Further, the jury could have rationally concluded that, to the extent plaintiff would be ableto earn some sort of living in the future, she could only do so with significant medical care andother treatment. While defendants claim that Dr. Leiken exaggerated the growth rate for medicalcare (5% per year), Dr. Rodriguez' testimony concerning the proper rate, which was limited to thestatement that "I think it was 4.5," was equivocal and unsupported. Accordingly, we cannotconclude that the jury improperly adopted Dr. Leiken's figure. Nor are there any other grounds tofind that the IAS court properly vacated the award for future medical expenses.
As to plaintiff's claim for past medical expenses, the jury's failure to award plaintiff anyrecovery for such damages is inconsistent with its liability finding. Moreover, the parties'stipulation that the fair and reasonable value of past medical expenses was $133,652 should beenforced (see Sanfilippo v City of New York, 272 AD2d 201 [2000], lvdismissed 95 NY2d 887 [2000]).
On the issue of mitigation, we reject plaintiff's argument that defendants failed to establishthe presence of seat belts. Defendants' accident reconstruction expert gave sufficient testimonyconcerning the likelihood that the taxi was equipped with seat belts to allow the jury to concludethat it was. As to the effect of plaintiff's failure to utilize a seat belt, it is well settled that aplaintiff's failure to do so goes to mitigation of damages only, not to comparative liability (seeSpier v Barker, 35 NY2d 444, 450 [1974]; Garcia v Tri-County Ambulette Serv., 282AD2d 206, 207 [2001]; see PJI 2:87.1). Defendants argue that the jury's finding thatplaintiff should have used a seat belt was inconsistent with its conclusion that none of herinjuries were caused by her failure to use a seat belt.
We agree. The accident reconstruction expert testified that plaintiff's head injuries would nothave been so severe if she had been wearing a seat belt. Plaintiff's own treating neurologisttestified to the same effect. Plaintiff offers no plausible explanation for how the jury could havefound her negligent but failed to account for her conduct in making its damages award.Accordingly, the court correctly ordered a new trial to determine the amount by which plaintiff'stotal damages should be reduced because of her failure to use a seat belt.
Finally, the jury's award for future pain and suffering deviates from what would bereasonable compensation to the extent indicated (CPLR 5501 [c]). Concur—Gonzalez,P.J., Mazzarelli, Richter, Manzanet-Daniels and RomÁn, JJ.