| Hamer v City of New York |
| 2013 NY Slip Op 03431 [106 AD3d 504] |
| May 14, 2013 |
| Appellate Division, First Department |
| Luisa Hamer, Appellant-Respondent, v City ofNew York, Defendant, and New York City Department of Education, Also Known asNew York City Board of Education, Respondent-Appellant. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York (Susan Paulson of counsel),for respondent-appellant.
Judgment, Supreme Court, New York County (Lottie E. Wilkins, J.), entered March5, 2012, after a jury trial, awarding plaintiff damages for pain and suffering, upon averdict apportioning liability 75% to plaintiff and 25% to defendant Department ofEducation (DOE), unanimously reversed, on the law, and the matter remanded for a newtrial on both liability and damages, without costs.
On January 30, 2007, plaintiff, then 60 years old, broke her left femur when shetripped and fell on a raised piece of concrete on the sidewalk abutting premises occupiedby Public School 128. In the months prior to the accident a custodian at the school,whose duties included inspecting the sidewalk for defects and tripping hazards, had twicesubmitted work requests to the DOE's Division of School Facilities with respect to thatportion of the sidewalk, which he considered such a hazard.
Dr. Jeffrey Geller performed surgery on plaintiff on the day of the accident, havingdiagnosed her with a supracondylar femur fracture on the left leg, the area of the thighdirectly above the knee. The X ray revealed that it was an "intra-articular" break, withmultiple fracture lines, which went across the femur and into the joint, resulting infriction which could lead to arthritis. One day after the accident, Dr. Geller performed anopen reduction, with internal fixation, repairing the fracture by realigning the brokenbones and inserting a plate and screws.
Five days after the accident, plaintiff was able to walk around the hospital with awalker, accompanied by a physical therapist. She remained in the hospital for two weeksafter surgery. Upon discharge, Dr. Geller instructed plaintiff, among other things, not toput excess weight on her leg, as she was at a high risk of falling or reinjuring herself.After discharge, plaintiff received two months of home-care services, where sheambulated with a walker and learned to use crutches for the stairs. She later receivedtherapy at the hospital. By May 2007, plaintiff was [*2]treating her pain with Tylenol and medicated patches. Shecontinued to use a walker, but only at home, and used crutches only to negotiate the stairsin her building.
After her discharge, Dr. Geller next saw plaintiff on March 19, 2007. At that time,plaintiff was using a walker and was partially weight-bearing. Dr. Geller noted that thesurgical incision had healed well, that plaintiff had limited range of motion in her kneebut no knee instability, that the knee was moving and tracking well, and that plaintiff hadno pain. While plaintiff did not return for a scheduled appointment in May 2007, Dr.Geller noted that "[b]y her report however, she is doing well." Dr. Geller later testified attrial that for a typical person with the type of injury suffered by plaintiff it takes a year torecover muscle strength and two and three months for the bones to heal, but that thebroken bone never really takes on its normal shape. In addition, scar tissue forms duringthe healing process, leading to stiffness and swelling. He further testified that plaintiff'sfall caused her left leg fracture, that plaintiff would always have limited range of motionin her knee and some degree of scar tissue in the surrounding muscle, and would likelydevelop arthritis due to the intra-articular nature of the fracture. Dr. Geller also stated thatthe arthritis would be painful and was generally treated with a knee replacement. InAugust 2007, plaintiff was visiting a house in the Poconos when she felt weakness in herleft leg while walking and fell. She was driven back to New York, where Dr. Gellerdiagnosed her with a new, transverse fracture in the middle of her left femur, near the topof the implant, where the uppermost screw had been placed. Dr. Geller repaired thefracture by inserting additional hardware into the leg. Plaintiff stayed in the hospital onthe orthopedic floor for eight days and was then transferred to the rehabilitation floor fornine days. After her discharge from the second surgery, plaintiff used a walker for threeor four months, and then used a cane.
Plaintiff next saw Dr. Geller on October 15, 2007, at which time, as he noted in areport, she was "feeling great with basically no pain," had "great range of motion," herincision was well healed, and she could advance to weight-bearing, as tolerated.However, he testified at trial that at the time she was taking Percocet for pain andlimping badly. Dr. Geller prescribed physical therapy and encouraged plaintiff toadvance from using a walker to a cane. Plaintiff did not return for her next appointmentand Dr. Geller never saw her again.
In 2009, plaintiff stopped walking with a cane and, in July 2009, she stoppedattending physical therapy. Her leg continues to bother her periodically, preventing herfrom going outside without assistance and from walking more than two blocks withoutneeding to stop. Her leg pain also prevents her from doing many of the things she didbefore the accident, such as attending church, visiting her grandchildren and taking themto school, and shopping for groceries.
Several evidentiary disputes arose during trial. One led to a ruling refusing to allowDr. Geller to opine as to the cause of the second fracture or whether it was related to theinitial injury. In doing so, the court noted that, while plaintiff's supplemental verified billof particulars gave notice of "impaired gait causing post-surgical fall resulting in fractureof the . . . femoral shaft," Dr. Geller's report, furnished pursuant to CPLR3101 (d), had not indicated that he would opine as to the causal relationship between thefirst and second surgery. At the close of evidence, the court granted the DOE's motion tostrike all testimony given regarding plaintiff's second injury and second surgery.
Another dispute arose regarding plaintiff's testimony. Plaintiff testified through aSpanish interpreter. Through the interpreter, plaintiff testified that she fell "[o]n thesidewalk by the curb," after her foot got caught on a raised, cracked piece of concrete,near the school's [*3]cafeteria. She later clarified that thearea of her fall was "not near the curb" and then stated that it was "close to the curb."During cross-examination, plaintiff's counsel, outside the presence of the jury, alerted thecourt that he had a "tricky issue with translation." He explained "I've spoken to theplaintiff about [it] and I just spoke with her son. My understanding is she is saying the[Spanish] word acera for curb, which to her means sidewalk. I think she's been sayingsidewalk." The interpreter then explained that "acera means anywhere from the edge of abuilding until where the curb begins in the street" and that the word "curb" is "translatedas ditch, canaleta, ditch. It's not really a curb per se." The interpreter further stated that "Idon't know if [plaintiff] understands the difference" between the curb and sidewalk.When the DOE's counsel asked the interpreter if, when he used the word "curb," heinterpreted that word for plaintiff, the interpreter answered "I said to her sidewalk, whichmeans the entire edge, the entire surface." He also stated that he translated the word"curb" as "acera."
Plaintiff's counsel then sought permission to ask plaintiff questions intended toclarify what she meant when she testified regarding where she fell. The court denied therequest, ruling that plaintiff was "very emphatic" when she said had not fallen close tothe curb, and that, in any event, she was clear about where she fell when shown picturesof the accident site. Nevertheless, during the DOE's summation, its counsel referred toplaintiff's statements that she fell near the curb as one of "eight inconsistencies, eightdifferences, eight things that say she didn't fall where she said she fell."
Finally, plaintiff sought a missing witness charge with respect to a physician, Dr.Westerbrand, whom the DOE had designated as a medical expert but did not call totestify at trial. The DOE opposed the request, contending that Dr. Westerbrand was outof state and not under its control. However, it offered no support that such was the case.Nevertheless, the court declined to give the charge, noting that only the initial injury wasat issue at trial, and that the nature of that injury was undisputed.
At the close of evidence, defendant City moved to dismiss the complaint on thegrounds that the City had no prior written notice of the defect which caused plaintiff'sfall. The DOE moved to dismiss on the basis that it was not the owner of the propertywhere the accident occurred. The court granted the City's motion, and denied the DOE's.
The jury rendered a verdict finding that, while the DOE's negligence in maintainingthe sidewalk adjacent to its property was a substantial cause of plaintiff's injury,plaintiff's negligence was also a substantial cause. The jury apportioned 25% of theliability to the DOE and 75% of the liability to plaintiff. The jury awarded plaintiff$40,000 for past pain and suffering and $15,000 for future pain and suffering for oneyear. Plaintiff moved to set aside the verdict as against the weight of the evidence,seeking additur. The court denied the motion, finding that the jury could have reasonablyconcluded that the lasting effects of the initial injury were relatively minor.
The DOE argues on appeal that the action should have been dismissed as against itbecause it did not own the sidewalk where plaintiff fell. New York City Charter §521 (a) provides that "title to all property . . . acquired for school oreducational purpose . . . shall be vested in the city, but under the care andcontrol of the board of education for the purposes of public education, recreation andother public uses." Education Law § 2554 (4) affirmatively charges the DOE withresponsibility for "the care, custody, control and safekeeping of all school property orother property of the city used for educational, social or recreational work." The DOEcontends that these provisions are inapplicable to this case because the sidewalk onwhich plaintiff fell is [*4]not used for educationalpurposes, so it had no duty to maintain it. However, it cites no authority to support itsposition that the DOE's duty does not extend outside the school walls.
There is no statute or regulation which squarely designates the DOE as responsiblefor maintaining public areas outside school buildings. However, it is uncontested that thecustodian of the school adjacent to the sidewalk where plaintiff slipped considered it hisresponsibility to search for defects in the sidewalk and to submit requests directly to theDOE to have them repaired. Under those circumstances, where there was evidence thatthe DOE affirmatively undertook the duty to maintain the sidewalk, the court was wellwithin its discretion in submitting the question of the DOE's negligence to the jury (see Mudgett v Long Is. R.R.,81 AD3d 612, 613 [2d Dept 2011]).
As to plaintiff's request for a new trial on damages, we first address the court'spreclusion of testimony from Dr. Geller concerning plaintiff's second accident and itsconsequences. CPLR 3101 (d) (1) (i) provides that, upon request, parties must identifythose expected to be called as experts and "disclose in reasonable detail the subjectmatter on which each expert is expected to testify, the substance of the facts and opinionson which each expert is expected to testify . . . and a summary of thegrounds for each expert's opinion." However, the failure to serve a CPLR 3101 (d) noticewith regard to a treating physician, such as Dr. Geller, is not grounds forpreclusion of the physician's expert testimony as to causation where there has beendisclosure of the physician's records and reports, pursuant to CPLR 3121 and 22 NYCRR202.17 (see Breen v LaricEntertainment Corp., 2 AD3d 298 [1st Dept 2003]; Ryan v City of NewYork, 269 AD2d 170 [1st Dept 2000]). As this Court observed in Breen:"Where . . . a plaintiff's intended expert medical witness is a treatingphysician whose records and reports have been fully disclosed . . . , a failureto serve a CPLR 3101 (d) notice regarding that doctor does not warrant preclusion of thatexpert's testimony on causation, since the defendant has sufficient notice of the proposedtestimony to negate any claim of surprise or prejudice" (2 AD3d at 299-300). We havefurther held that a treating physician "[can] testify as to the cause of the injuries eventhough he expressed no opinion as to causation in the previously exchanged report"(Finger v Brande, 306 AD2d 104, 104 [1st Dept 2003]).
The DOE is correct that Dr. Geller's records and reports do not causally relateplaintiff's first and second fractures. Indeed, while Dr. Geller's February 3, 2009 narrativereport discussed plaintiff's initial and subsequent fractures, it did not, in any way,attribute the second fracture to the first one. Likewise, the operative report for the secondsurgery did not causally relate the two injuries. Nevertheless, the supplemental bill ofparticulars, to the extent it alleged "impaired gait causing post-surgical fall resulting infracture of the . . . femoral shaft," indicated a causal link between the twofractures sufficient to place the DOE on notice of plaintiff's theory. The DOE's argumentthat Dr. Geller's testimony failed to connect the second fall to the initial injury isdisingenuous because, of course, he was precluded from giving such testimony.
Since the DOE failed to establish the critical element of surprise, the courtimprovidently exercised its discretion in precluding Dr. Geller from testifying as to thesecond injury. Further, there is a reasonable likelihood that the jury's inability to considerthe second injury, which was very serious and required surgery, had an effect on thedamages award.
Plaintiff further argues that the court committed reversible error in refusing to issue amissing witness charge with respect to Dr. Westerbrand, the defense expert. "A missingwitness charge should be granted when the opposing party has shown that the uncalledwitness is knowledgeable about a material issue upon which evidence is already in thecase, that the witness [*5]would naturally be expected toprovide noncumulative testimony favorable to the party who has not called the witnessand that the witness is available to that party" (Germe v City of New York, 211AD2d 480, 480 [1st Dept 1995]).
Here, plaintiff satisfied each of these elements. First, the DOE failed to offer supportthat Dr. Westerbrand was unavailable. Second, clearly the doctor was knowledgeableabout plaintiff's physical condition. Finally, his testimony would have beennoncumulative, and would naturally have been expected to favor the DOE, which, afterall, designated him as its medical expert. That Dr. Westerbrand's report in fact noted that,upon his examination of plaintiff, there were abnormal ranges of motion in her leg, onlybolsters plaintiff's contention that the charge was appropriate. Further, the fact that Dr.Westerbrand conducted his examination after the second surgery is irrelevant, becausethe DOE can only speculate in arguing that any testimony he had to offer would not havebeen probative as to the first injury.
Plaintiff contends that a new damages trial is necessary not only because of theseevidentiary errors, but also because the total award of $55,000 for past and future painand suffering is inadequate and deviates materially from reasonable compensation.Dr. Geller's and plaintiff's unrefuted testimony established that, as a result of theaccident, plaintiff fractured her left femur, which required open reduction and internalfixation, with a two-week-long hospital stay, followed by a course of physical therapy.Plaintiff's injury required her to use a walker and then a cane to ambulate for some timeand resulted in the restriction of her activities of daily living.
Given the injury and its sequella, the jury's pain and suffering awards deviatematerially from reasonable compensation. By way of comparison, in Alfonso v Metropolitan Tr.Auth. (103 AD3d 563 [1st Dept 2013]), an award of $450,000 for past pain andsuffering and $800,000 for future pain and suffering was considered appropriate where a52-year-old plaintiff fractured her wrist, requiring open reduction and internal fixation,and suffered reduced ranges of motion and a likelihood of progressive arthritis. Otherreported decisions similarly suggest that the jury award was incongruent with whatwould have reasonably been expected for the injury suffered by plaintiff (see Lowenstein v NormandyGroup, LLC, 51 AD3d 517 [1st Dept 2008] [$300,000 award for past pain andsuffering and $850,000 award for future pain and suffering sustained where the plaintiff,in her 60s, suffered a fractured ankle, which was treated with open reduction and internalfixation, and a shoulder fracture]; Ruiz v New York City Tr. Auth., 44 AD3d 331 [1st Dept2007] [$100,000 for past pain and suffering and $200,000 for future pain and sufferingwhere 46-year-old plaintiff underwent surgery for a fractured right ankle, involving openreduction and internal fixation with a plate and screws]).
Finally, plaintiff seeks a new trial on liability on the basis of the confusionsurrounding the use and translation of the Spanish word "acera." She argues that the jurywas left with an impression that she was unsure of where she fell, and consequentlyfound the DOE only 25% liable for the accident. Indeed, in its summation, the DOEfocused on certain perceived inconsistencies in plaintiff's testimony. It is notunreasonable to assume that the jury, as urged by the DOE's counsel, questionedplaintiff's credibility in part based on her testimony, as translated by the interpreter, thatshe fell near the curb, when at other times she maintained that she fell on the sidewalk.Indeed, based on this record, it is difficult to imagine another reason for a finding thatplaintiff was 75% culpable for this trip-and-fall accident. A review of the transcript,particularly the extensive colloquy over whether the interpreter's use of the word "acera"misconstrued what counsel meant when they used the words "curb" and "sidewalk," and[*6]whether his use of the words "sidewalk" and "curb"misconstrued what plaintiff meant when she used the word "acera," reveals that therewas, at the very least, palpable confusion concerning the word. Had the court permittedplaintiff's counsel, in light of the confusion, to ask plaintiff questions intended to ensurethat the jury heard an accurate description of where plaintiff fell, such credibilityconcerns may well have been eliminated. Under the circumstances, the court's simplypointing out plaintiff's testimony that she fell on the "sidewalk" was insufficient to rectifythe error in translation, since the jury may have still been left with the impression thatplaintiff was confused (seePeople v Kowlessar, 82 AD3d 417, 418 [1st Dept 2011]).Concur—Mazzarelli, J.P., Acosta, Freedman, Richter and Gische, JJ.