| Vincent v Landi |
| 2014 NY Slip Op 08527 [123 AD3d 1183] |
| December 4, 2014 |
| Appellate Division, Third Department |
[*1]
| David Vincent et al.,Appellants-Respondents, v Angelo T. Landi, Individually and Doing Business asAngelo's Steak and Seafood Restaurant, Respondent-Appellant, et al.,Defendant. |
Fischer, Bessette, Muldowney & Hunter, LLP, Malone (John J. Muldowney ofcounsel), for appellants-respondents.
FitzGerald Morris Baker Firth, PC, Glens Falls (William A. Scott of counsel), forrespondent-appellant.
Garry, J. Cross appeals from an order of the Supreme Court (Demarest, J.), enteredFebruary 22, 2013 in Franklin County, which denied cross motions by plaintiffs anddefendant Angelo T. Landi to set aside a verdict in favor of plaintiffs.
In January 2007, plaintiff David Vincent (hereinafter plaintiff) fractured his anklewhen he fell on black ice on a walkway at Angelo's Steak and Seafood Restaurant, abusiness owned and operated by defendant Angelo T. Landi (hereinafter defendant) inthe Town of Potsdam, St. Lawrence County. Plaintiff and his wife, derivatively,commenced this negligence action against defendant and the owner of thepremises.[FN1]Following a trial, the jury determined that defendant was negligent in maintaining thepremises and awarded plaintiff $15,000 as damages for past pain and suffering and$37,526 for past lost business profits, but made no award for future pain and suffering orfuture lost profits. Following entry of judgment, plaintiffs moved to set aside the juryverdict and for a new trial on the issue of damages, and defendant moved to set aside theverdict. Supreme Court denied the motions. Plaintiffs and defendant cross-appeal fromthe order denying their motions.
Defendant contends that his motion to set aside the verdict should have been grantedbecause plaintiffs failed to satisfy their burden of proof as to notice. Plaintiffs respondthat constructive notice of the icy walkway can be imputed to defendant because theevidence established that he had actual knowledge of an unsafe, recurring condition andfailed to take corrective action (see Black v Kohl's Dept. Stores, Inc., 80 AD3d 958, 960[2011]; Bush v MechanicvilleWarehouse Corp., 69 AD3d 1207, 1208-1209 [2010]; see generally Gordonv American Museum of Natural History, 67 NY2d 836, 837-838 [1986]). Thetestimony established that the weather on the day of the accident was clear, cold andsunny. Snow had fallen the night before, and defendant testified that he shoveled, sandedand salted the walkway in front of the restaurant sometime before noon. Plaintiff and hiswife testified that they saw no ice on the walkway when they arrived at the restaurant atabout 4:00 in the afternoon, but that by the time they left an hour and a half or two hourslater, black ice had formed on it, causing plaintiff to slip and fall.
The walkway ran along the front of the restaurant, just below the projecting edge ofthe sloped, south-facing roof. Defendant testified that he was aware that winter sunlightoften melted snow on this roof, causing water to drip from the eaves onto the walkwaybelow, where it would collect and freeze when temperatures dropped later in the day. Heconfirmed that this condition recurred on a regular basis and that, as a result, he hadinstructed his employees to check the walkway for ice and to apply sand and salt whennecessary. He testified that he had installed an eight-foot-long gutter over the restaurantdoor to protect it from water running off the roof, but had chosen not to install similargutters over the walkway. Finally, he stated that he saw snow on the roof on the morningof the accident and knew from his previous experience that this could melt, causing waterto drip onto the walkway and later freeze.
A waitress employed by defendant testified that she was aware that meltwater fromthe roof could create icy conditions and that she had previously seen ice on the walkwaythat had formed in this fashion. She stated that she arrived at work at about 3:00 p.m. onthe day of the accident and saw water running off the roof onto the walkway in the areawhere plaintiff later fell. She further testified that she assisted plaintiff after the accident,and that she saw black ice on the walkway in the area where he was lying, which shedescribed as "slippery." Viewing this evidence in the light most favorable to plaintiffs,we find a valid line of reasoning and permissible inferences that could have led a rationaljury to conclude that defendant had actual knowledge of an unsafe, recurring condition(see Zelaya v Breger, 43AD3d 437, 439 [2007]; Pugliese v D'Estrada, 259 AD2d 743, 744 [1999];see also Vincent v Landi,101 AD3d 1565, 1567 [2012]; Knight v Sawyer, 306 AD2d 849, 849[2003]; Padula v Big v Supermarkets, 173 AD2d 1094, 1096 [1991]). As todefendant's further contention that the verdict was against the weight of the evidence, wecannot say that the evidence so preponderated in his favor that the jury could not havereached its verdict based on any fair interpretation of the evidence (see Maurer v Tops Mkts., LLC,70 AD3d 1504, 1506 [2010]; see also Lolik v Big v Supermarkets, 86 NY2d744, 746 [1995]; Winter vStewart's Shops Corp., 55 AD3d 1075, 1077 [2008]).
Next, plaintiffs contend that Supreme Court should have granted their motion to setaside the verdict and directed a new trial on the issue of damages. An award of damagesfor pain and suffering may be set aside on the ground of inadequacy "when it deviatesmaterially from reasonable compensation for the injury sustained" (Sherry v North Colonie Cent.School Dist., 39 AD3d 986, 990 [2007]; see CPLR 5501 [c]; Hensley v Lawrence, 40 AD3d1375, 1376 [2007]). Whether such an award is reasonable is determined byanalyzing comparable cases, taking into account "the nature, extent and permanency ofthe injuries, the extent of past, present and future pain and the long-term effects of theinjury" (Nolan v Union Coll.Trust of Schenectady, N.Y., 51 AD3d 1253, 1256 [2008], lv denied 11NY3d 705 [2008]; accordSkelly-Hand v Lizardi, 111 AD3d 1187, 1190 [2013]). Deference is accorded tothe jury's damage assessment and to the trial court's decision on a motion to set aside theverdict (see Ciuffo v MoweryConstr., Inc., 107 AD3d 1195, 1198 [2013]; Felitti v Daughriety, 12 AD3d 909, 910 [2004]).
Plaintiff sustained a spiral fracture of the left distal fibula with joint incongruency,described by his treating orthopedic surgeon as a "big, big gap" in the ankle joint wherethe leg bones had separated from those of the foot and supporting ligaments had beentorn. The injury required open reduction surgery and internal fixation with a plate andseven screws. Plaintiff initially required prescription pain medication, wore a fractureboot with instructions to put no weight on his ankle and used a walker and, later, a cane.Six weeks after the accident, the surgeon instructed plaintiff to begin putting weight onhis ankle. The surgeon testified that he continued to see plaintiff at frequent intervalsduring 2007 and 2008, that the fracture and surgical wound healed uneventfully, and thatplaintiff's pain improved at first, but then began to worsen. By November 2007, plaintiffwas experiencing swelling, limited range of motion and increased pain, especiallyfollowing certain activities such as walking on uneven ground. The surgeon diagnosedprogressive posttraumatic arthritis, a chronic condition that he opined was caused by theaccident. During 2008, according to the medical evidence, plaintiff continued to reportmild or moderate ankle pain that intensified to more severe levels followingoverexertion; his surgeon instructed him to avoid activities that caused pain andadministered several cortisone injections into the ankle joint, but ultimately discontinuedthese injections because they provided only temporary relief. At the time of plaintiff'sfinal visit to his surgeon in December 2008, his pain had improved somewhat, stabilizingat a level described as 3 on a scale of 10. The surgeon testified that no further medicaltreatment was available at that time; he advised plaintiff to continue to avoid painfulactivities, and to return if his condition deteriorated.[FN2]
Plaintiff, who owned and operated a dairy farm, testified that he was able to increasehis activities gradually following the accident, as medically directed, but that hecontinued to experience mild to moderate pain that worsened during daily activities andbecame "excruciating" upon overexertion. He followed medical instructions to avoidactivities that caused pain to the extent that he was able to do so, but his farmresponsibilities sometimes required him to engage in activities that increased his pain,such as walking on soft, uneven pasture surfaces. At the time of trial, almost six yearsafter the accident, plaintiff testified that he continued to suffer daily pain that becameworse following overexertion, and that he had never been able to resume certain farmtasks that he had performed before the injury, such as milking cows. He had also beenforced to discontinue former recreational activities, including bowling and hunting.
The surgeon opined that plaintiff's testimony was consistent with the nature of hisinjury, stating that his posttraumatic arthritis was permanent and would likely cause painand limit plaintiff's activities for the rest of his life. Based upon this evidence and ourreview of comparable damage awards for past pain and suffering involving anklefractures that required surgery, we find that the award of $15,000 deviates materiallyfrom reasonable compensation (see Sherry v North Colonie Cent. School Dist.,39 AD3d at 990-991 [$15,500 was "woefully inadequate" for trimalleolar ankle fracturerequiring surgery]; Ordway v Columbia County Agric. Socy., 273 AD2d 635,636-637 [2000] [award of no damages was unreasonable for bimalleolar ankle fracturedislocation requiring two surgeries]; Carlino v County of Albany, 178 AD2d 772,773-774 [1991] [$50,000 not excessive for severe ankle fracture requiring surgicalcorrection with residual pain and resulting limitations on activities six years later]; see also Sanchez v Morrisania IIAssoc., 63 AD3d 605, 605 [2009] [$100,000 was inadequate for torn rotatorcuff and fractured ankle that healed without surgery]; Ruiz v New York City Tr. Auth., 44 AD3d 331, 332 [2007][award reduced to $100,000 for fractured ankle that required open reduction andfixation]; Hughes v Webb,40 AD3d 1035, 1037-1038 [2007] [$22,500 was inadequate for tri-plane fracture ofthe distal tibia requiring open reduction and fixation]; Brandwein v New York City Tr.Auth., 14 AD3d 396, 397 [2005] [award of $30,000 increased to $60,000 forankle fracture that did not require surgery]). Based upon our consideration of the damageawards in these cases, we find that a new trial is warranted on this issue unless defendantstipulates to an award of $75,000 for past pain and suffering (see Vogel v Cichy, 53 AD3d877, 880 [2008]).
We further conclude that the award of no damages for future pain and suffering wasinadequate, as there was no evidence from which the jury could have found thatplaintiff's condition would improve such that his pain would be completely alleviated(compare Britvan v Plaza at Latham, 266 AD2d 799, 800-801 [1999]). Plaintiffand the surgeon both testified that the reason that plaintiff ceased his related medicaltreatment after December 2008 was not that he had fully recovered, but that no furthermedical treatment was available; no medical evidence was introduced to refute the expertmedical opinion that plaintiff's condition was permanent and that he would continue tosuffer some level of pain and restriction. The evidence so preponderated in plaintiffs'favor that this aspect of the verdict could not have been based upon "any fairinterpretation of the evidence" (Lolik v Big v Supermarkets, 86 NY2d at 746[internal quotation marks and citation omitted]; see Hammer v 1111 Ave. K, Inc., 115 AD3d 803, 804[2014] [$140,000 for future pain and suffering inadequate for dislocated trimalleolarfracture where the plaintiff experienced daily pain and was at risk of developingposttraumatic arthritis]; Grinberg v C&L Contr. Corp., 107 AD3d 491, 492[2013] [$35,000 was inadequate for a plaintiff who developed permanent arthritisfollowing ankle and leg fractures]; Ruiz v New York City Tr. Auth., 44 AD3d at332 [$750,000 reduced to $200,000 for ankle injury that caused few limitations andoccasional pain treated with over-the-counter medication]; Rivera v Lincoln Ctr. forPerforming Arts, Inc., 16 AD3d 274, 274-275 [2005] [$40,000 was inadequatefor posttraumatic arthritis following ankle injury]; see also Simeon v Urrey, 278AD2d 624, 625 [2000] [no award of future pain and suffering damages was inadequatewhere a plaintiff suffered progressive arthritis, permanent weakness and pain afterstrenuous exercise following arm fracture]). Upon our review of these cases, theevidence and plaintiff's estimated life expectancy of 28.2 years at the time of trial, wefind that an award of $100,000 for future pain and suffering would be reasonable.
The damage awards for lost profits are likewise unsupported by any fairinterpretation of the evidence. While an injured plaintiff who owns or operates a businessmay not recover lost profits that were primarily earned through the labor of others or theemployment of capital, he or she may recover lost profits that directly result from injuriesthat prevent the plaintiff from contributing his or her skills, talents or abilities to thebusiness (see Steitz v Gifford, 280 NY 15, 20 [1939]; Behrens v Metropolitan OperaAssn., Inc., 18 AD3d 47, 50 [2005]; PJI 2:295). The amount of such an award isproperly based upon an objective inquiry that the plaintiff must prove "with reasonablecertainty" (Tassone vMid-Valley Oil Co., 5 AD3d 931, 932 [2004], lv denied 3 NY3d 608[2004]; accord Petrilli vFederated Dept. Stores, Inc., 40 AD3d 1339, 1341-1342 [2007]; see also Kyme v Pantuosco, 35Misc 3d 1233[A], 2012 NY Slip Op 50984[U], *4 [Sup Ct, Albany County 2012]).Here, plaintiff testified that he owned and operated the farm on a 50-50 basis with hisbrother until 2012, and thereafter owned 100% of the business. He testified that hecontributed his own labor to the farm business, that his responsibilities had includeddaily milking chores before the accident, and that severe pain caused by his injuriesprevented him from resuming this task thereafter. For this reason, he hired an additionalworker in 2007 to take over his daily milking, still employed this worker in this capacityat the time of trial, and expected the need for her services to continue. Plaintiffssubmitted tax and business records establishing that the farm had employed four workersbefore the accident and had added a fifth employee shortly thereafter, at a total cost of$108,035 between 2007 and 2011.
The fifth employee testified that she was hired to milk the cows in 2007 becauseplaintiff could no longer do so, and that she still worked in that capacity. She and otherwitnesses confirmed that they had seen plaintiff attempt to milk cows after the accidentand that pain had prevented him from doing so. Supreme Court took judicial notice ofactuarial tables indicating that plaintiff had a life expectancy of 28.2 years at the time oftrial and a remaining working life of 8.7 years. This evidence satisfied plaintiffs' burdenof proving with reasonable certainty that the cost of hiring this employee was a directresult of plaintiff's injuries. It further demonstrated that he had lost$54,017.50—half of the total cost of her employment through 2011, while thefarm was jointly owned—as past lost profits, and that he would continue to loseprofits for this reason on a 100% basis from 2012, when he assumed sole ownership,through the remainder of his working life (see Duff v Mariani, 248 AD2d 905,907 [1998]). The jury's award of damages for past lost profits reveals that it acceptedplaintiffs' proof that plaintiff's injuries prevented him from contributing his labor to thefarm business and resulted in lost profits. The amount of the award,however—less than $54,017.50 in past lost profits and nothing for future lostprofits—is inconsistent with this determination and with any fair interpretation ofthe evidence, as there was no evidence calling the accuracy of plaintiffs' proof intoquestion or suggesting that plaintiff's condition had improved or was expected toimprove such that the employment of the fifth worker would become unnecessary(see Cochetti v Gralow, 192 AD2d 974, 975 [1993]; compare Vukovich v 1345 FeeLLC, 72 AD3d 496, 497 [2010]). Contrary to defendant's contention, the factthat the farm's overall profits increased in the years following plaintiff's injury does notforeclose recovery, as the amount of this increase was lessened by the cost of employingthe additional worker (see Behrens v Metropolitan Opera Assn., Inc., 18 AD3d at51). Accordingly, a new trial on this aspect of damages is required unless defendantstipulates to an increase in the damage award for past lost profits to $54,017.50, and anincrease in the award for future lost profits to $203,018.85.[FN3]
Peters, P.J., Lahtinen, Rose and Lynch, JJ., concur. Ordered that the order ismodified, on the facts, without costs, by reversing so much thereof as awarded plaintiffDavid Vincent $15,000 for past pain and suffering, $0 for future pain and suffering,$37,526 for past lost profits and $0 for future lost profits; new trial ordered on the issuesof past and future pain and suffering and past and future lost profits unless, within 20days after service of a copy of the order herein, defendant stipulates to increase theawards for past pain and suffering to $75,000, for future pain and suffering to $100,000,for past lost profits to $54,017.50 and for future lost profits to $203,018.85, in whichevent said order, as so modified, is affirmed.
Footnote 1: The matter waspreviously before this Court upon defendant's appeal from the denial of his motion forsummary judgment dismissing the complaint against him (101 AD3d 1565 [2012]).
Footnote 2: Plaintiff was treated bythis surgeon on several occasions in 2010 and 2011 for an unrelated condition.
Footnote 3: The award for futurelost profits is based upon the average annual cost from 2008 through 2011 of employingthe extra worker—who did not work for a full year in 2007—multiplied byplaintiff's 8.7-year work-life expectancy at the time of trial.