| Turturro v City of New York |
| 2015 NY Slip Op 02754 [127 AD3d 732] |
| April 1, 2015 |
| Appellate Division, Second Department |
[*1]
| Anthony Turturro, an Infant, by His Mother and NaturalGuardian, Elida Turturro, et al., Respondents, v City of New York,Respondent-Appellant, and Louis Pascarella et al.,Appellants-Respondents. |
Longo & D'Apice, Brooklyn, N.Y. (Mark A. Longo and Bonnie S. Kurtz ofcounsel), for appellants-respondents.
Zachary W. Carter, Corporation Counsel, New York, N.Y. (Larry A. Sonnenshein,Jennifer A. Coyne, and Mordecai Newman of counsel), for respondent-appellant.
Gallagher, Walker, Bianco & Plastaras, Mineola, N.Y. (Robert J. Walker ofcounsel), for respondents.
In an action to recover damages for personal injuries, the defendants Louis Pascarellaand Beatrice Pascarella appeal from so much a judgment of the Supreme Court, KingsCounty (Kramer, J.), dated July 30, 2012, as, upon a jury verdict finding the infantplaintiff 10% at fault in the happening of the accident, the defendant Louis Pascarella50% at fault, and the City of New York 40% at fault, finding that the infant plaintiffsustained damages, inter alia, in the principal sums of $6,000,000 for past pain andsuffering, $15,000,000 for future pain and suffering, $11,500,000 for future medicalexpenses, and $3,000,000 for future lost earnings, and finding that the plaintiff ElidaTurturro sustained damages in the principal sum of $75,000 for loss of services, upon anorder of the same court dated February 6, 2012, inter alia, denying that branch of theirmotion pursuant to CPLR 4404 (a) which was to set aside the verdict on the issue ofliability and granting those branches of their motion which were to set aside the verdicton the issue of damages only to the extent of granting a new trial unless the plaintiffsstipulated to reduce the award as to future pain and suffering from $15,000,000 to$10,000,000 and the award as to future medical expenses from $11,500,000 to$7,000,000, and upon the plaintiffs' stipulation to those reductions, is in favor of theplaintiffs and against them, and the defendant City of New York cross-appeals from somuch of the same judgment as, upon the jury verdict, upon the order dated February 6,2012, among other things, denying that branch of its separate motion pursuant to CPLR4404 (a) which was to set aside the verdict on the issue of liability and granting thosebranches of its motion which were to set aside the verdict on the issue of damages only tothe extent indicated, and upon the plaintiffs' stipulation, is in favor of the plaintiffs andagainst it.
Ordered that the judgment is modified, on the facts, (1) by deleting the provisionthereof awarding the plaintiff Elida Turturro the principal sum of $75,000 for the loss ofthe infant plaintiff's services, and substituting therefor a provision dismissing that causeof action, and (2) by deleting the provisions thereof awarding damages to the infantplaintiff in the principal sums of $6,000,000 for past pain and suffering and $10,000,000for future pain and suffering; as so modified, [*2]thejudgment is affirmed, without costs or disbursements, and the matter is remitted to theSupreme Court, Kings County, for a new trial on the issues of damages for past andfuture pain and suffering, unless within 30 days after service upon the plaintiffs of a copyof this decision and order, the plaintiffs serve and file in the office of the Clerk of theSupreme Court, Kings County, a written stipulation consenting to reduce the amount ofdamages for past pain and suffering from the principal sum of $6,000,000 to theprincipal sum of $3,000,000, and to further reduce the amount of damages for future painand suffering from the principal sum of $10,000,000 to the principal sum of $7,000,000,and to the entry of an appropriate amended judgment accordingly; in the event that theplaintiffs so stipulate, then the judgment, as so reduced and amended, is affirmed,without costs or disbursements.
On December 5, 2004, at approximately 6:25 p.m., the infant plaintiff, who was then12 years old, was struck by an automobile while riding his bicycle on Gerritsen Avenuein Brooklyn. The automobile was owned by the defendant Beatrice Pascarella andoperated by the defendant Louis Pascarella. According to a police report, the vehicle wastraveling at a minimum speed of 54 miles per hour in a posted 30 mile-per-hour zone atthe time of impact.
As a result of the accident, the infant plaintiff was in a coma for approximately fivemonths. He sustained, among other things, a severe head and brain injury, includingextensive fractures to the skull, subdural hematomas, and intracranial hypertension. Healso sustained fractures to his ankle and hip, and a collapsed lung. He underwentnumerous surgeries and developed several complications, including a seizure disorder.The brain injuries permanently diminished the infant plaintiff's cognitive and motorfunctioning.
The infant plaintiff, by his mother, and his mother, individually, commenced thisaction against the Pascarellas and the City of New York. After a trial on the issues ofboth liability and damages, the jury returned a verdict finding the infant plaintiff 10% atfault in the happening of the accident, Louis Pascarella 50% at fault, and the City 40% atfault. The jury awarded the infant plaintiff $6,000,000 for past pain and suffering,$15,000,000 for future pain and suffering, $11,500,000 for future medical expenses, and$3,000,000 for future lost earnings. The parties stipulated as to past medical expenses.The jury also awarded the infant plaintiff's mother the sum of $75,000 for loss of hisservices.
The City and the Pascarellas separately moved pursuant to CPLR 4404 (a), inter alia,to set aside the verdicts on the issues of liability and damages. The Supreme Court deniedthose branches of the defendants' separate motions which were to set aside the verdict onthe issue of liability, and granted those branches of their separate motions which were toset aside the verdict on the issue of damages, but only to the extent of granting a new trialunless the plaintiffs stipulated to reduce the award as to future pain and suffering to$10,000,000 and the award as to future medical expenses to $7,000,000. The plaintiffs sostipulated, and a judgment was entered in favor of them and against the defendants. ThePascarellas appeal, and the City cross-appeals, from the judgment.
The City first argues that the cause of action against it should have been dismissedbecause the plaintiffs failed to plead or prove the existence of a "special duty." Thiscontention is without merit. When a negligence cause of action is asserted against amunicipality, the court must first decide whether the municipal entity was engaged in aproprietary function or was acting in a governmental capacity at the time the claim arose(see Wittorf v City of NewYork, 23 NY3d 473, 478 [2014]; Applewhite v Accuhealth, Inc., 21 NY3d 420, 425 [2013];Matter of World Trade Ctr.Bombing Litig., 17 NY3d 428, 446-447 [2011]; Estate of Gail Radvin v City ofNew York, 119 AD3d 730, 732 [2014]). If the municipality's activities areproprietary in nature, the municipality is subject to suit under the ordinary rules ofnegligence applicable to nongovernmental parties (see Wittorf v City of NewYork, 23 NY3d at 478; Applewhite v Accuhealth, Inc., 21 NY3d at 425;Estate of Gail Radvin v City of New York, 119 AD3d at 732). By contrast, if themunicipality was exercising a nondiscretionary governmental function, it will not be heldliable unless it owed a "special duty" to the injured party (see Applewhite vAccuhealth, Inc., 21 NY3d at 426; Valdez v City of New York, 18 NY3d 69, 75 [2011]).
Here, the plaintiffs alleged, among other things, that the City was negligent in that itreceived numerous complaints that vehicles were speeding and racing along the entirelength of [*3]Gerritsen Avenue, but completely failed toconduct a proper and adequate study of this speeding problem, and failed to implement areasonable plan to control or resolve the dangerous condition presented on the roadway.Since a municipality's duty to keep its roads and highways in a reasonably safe conditionis proprietary in nature (see Wittorf v City of New York, 23 NY3d at 480), theCity's contention that it cannot be held liable under the plaintiffs' theory absent theexistence of a "special duty" to the infant plaintiff must be rejected (see Fulgum v Town ofCortlandt, 2 AD3d 775, 777 [2003]; see generally Applewhite v Accuhealth, Inc., 21 NY3d 420[2013]).
The City's argument that the causes of action asserted against it must be dismissedbecause it is entitled to immunity is also without merit. In the field of traffic designengineering, a municipality is accorded qualified immunity from liability arising out ofits highway planning decisions (see Friedman v State of New York, 67 NY2d271, 283 [1986]; Mare v City ofNew York, 112 AD3d 793, 794 [2013]; Kuhland v City of New York, 81 AD3d 786, 787 [2011]).The doctrine of qualified immunity, however, will only apply where the municipality hasconducted a study which " 'entertained and passed on the very same question ofrisk' " (Kuhland v City of New York, 81 AD3d at 787, quoting Weissv Fote, 7 NY2d 579, 588 [1960]) as was alleged by the plaintiff. Indeed, amunicipality may be held liable if, "after being made aware of a dangerous trafficcondition, it does not undertake an adequate study to determine what reasonablemeasures may be necessary to alleviate the condition" (Bresciani v County of Dutchess,N.Y., 62 AD3d 639, 640 [2009]; see Affleck v Buckley, 96 NY2d 553[2001]; Ernest v Red Cr. Cent. School Dist., 93 NY2d 664 [1999]; Friedmanv State of New York, 67 NY2d 271 [1986]; Mare v City of New York, 112 AD3d 793 [2013]; Scott v City of New York, 16AD3d 485 [2005]). Moreover, after a municipality implements a traffic plan, "it is'under a continuing duty to review its plan in the light of its actual operation' "(Friedman v State of New York, 67 NY2d at 284, quoting Weiss v Fote, 7NY2d at 587; see Kosoff-Bodav County of Wayne, 45 AD3d 1337, 1338 [2007]).
At the trial, testimony and documentary evidence indicated that, over a period ofseveral years prior to the subject accident, the City had received numerous complaintsfrom neighborhood residents and elected officials that certain intersections alongGerritsen Avenue that were not controlled by traffic signals posed a danger to schoolchildren crossing the street, and that vehicles were speeding and racing along the entirelength of Gerritsen Avenue, thus creating a dangerous speeding condition. The Citytendered evidence showing that, in response to these complaints, the Intersection ControlUnit (hereinafter the ICU) of the New York City Department of Transportation(hereinafter the DOT) conducted several traffic studies related to Gerritsen Avenue.While it was undisputed that these studies considered and addressed the issue of whethertraffic signals were warranted at the specified intersections, there was conflictingtestimony as to whether these studies also considered and addressed the question of whatreasonable measures might be necessary to respond to the risks presented by vehiclesspeeding and racing along the overall length of Gerritsen Avenue. In connection withthis issue, the Chief of the ICU testified that she had never been asked to study acomplaint of speeding along the entire stretch of a roadway, that she did not know of anystudy that looked at a complaint of speeding along the entire stretch of Gerritsen Avenue,and that she did not know whether any measures to slow down or otherwise controlvehicular traffic, known in the field of traffic engineering as traffic-calming measures,had been considered for the strip as a whole. While she indicated that spot studiesconducted by the ICU utilized some elements that would be found in a traffic-calmingstudy, she acknowledged that the spot studies were not, in fact, traffic-calming studies.The woman who served as the Brooklyn Borough Engineer (hereinafter the BBE) at thetime of the accident similarly testified that she was never asked to conduct any studyconcerning speeding vehicles on Gerritsen Avenue. The BBE noted that any complaintsregarding vehicles speeding along a section of a roadway should have been relayed to heroffice, and acknowledged that she was not aware of the complaints of this natureregarding Gerritsen Avenue. The plaintiffs' expert, a transportation forensic engineer,opined, inter alia, that the studies conducted by the ICU only addressed the question ofwhether traffic signals were warranted at certain specified intersections, that they did notconsider the corridor as a whole, and that they were not adequate in terms of addressingthe risks posed by vehicles speeding along the overall length of the roadway.
The City presented testimony from the Chief of Signals in the DOT's Division ofTraffic Operations and from its own retained expert, a civil transportation engineer. TheChief of [*4]Signals stated that, considering the nature ofthe speeding complaints, it was appropriate for those complaints to be routed to the ICUfor review. He noted, among other things, that the ICU, in conducting the studies withrespect to Gerritsen Avenue, collected data regarding vehicle speed, and that, in responseto this data, it notified the local New York City Police Department precinct of itsfindings and requested additional police enforcement of the speed limit. The Chief ofSignals also acknowledged, however, that the ICU was not a division of the DOT thatwas responsible for the implementation of traffic-calming measures and that, at the timeof the accident, the DOT's Planning Unit undertook traffic-calming studies. Similarly,while the City's expert opined that the ICU's studies were adequate and appropriate giventhe nature of the complaints, he also acknowledged that the ICU studies were not, in fact,traffic-calming studies.
Considering the testimony and documentary evidence presented, there was a rationalprocess by which the jury could have found that the City had notice that excessivespeeding along the length of Gerritsen Avenue created a dangerous condition and thatthe City failed, in response to the complaints it received, to conduct a study which" 'entertained and passed on [this] very same question of risk' "(Kuhland v City of New York, 81 AD3d at 787, quoting Weiss v Fote, 7NY2d at 588) posed by excessive speeding along Gerritsen Avenue. As such, thedoctrine of qualified immunity does not apply (see Kuhland v City of New York,81 AD3d at 787).
Similarly, there was a rational process by which the jury could have found that thefrequency of speeding cars along the roadway was unreasonably dangerous, and that theCity's negligence in terms of studying the problem and implementing a plan to mitigateor resolve the problem was a proximate cause of the accident (see Szczerbiak vPilat, 90 NY2d 553, 556 [1997]; Kuhland v City of New York, 81 AD3d 786, 787 [2011]).We thus reject the City's contention that the negligence of Louis Pascarella in theoperation of his vehicle was the sole proximate cause of the accident. Contrary to theCity's contention, there was also a valid line of reasoning supporting the jury'sapportionment of fault (seeTravelers Indem. Co. v S.T.S. Fire Prevention, 41 AD3d 835, 835-836 [2007];Crawford v New York CityHous. Auth., 33 AD3d 956, 957 [2006]). Moreover, we are not persuaded thatthese findings were contrary to the weight of the evidence (see Lolik v Big vSupermarkets, 86 NY2d 744 [1995]; Kuhland v City of New York, 81 AD3dat 787).
There is no merit to the City's argument that the causes of action against it must bedismissed because the plaintiffs' notice of claim was inadequate. As the plaintiffscorrectly point out, the notice of claim adequately apprised the City that the plaintiffswould seek to impose liability on the theory that the City was negligent in failing toconduct proper and adequate studies of a known speeding problem, and for failing totimely implement a plan to mitigate or resolve the problem (see Bartley v County ofOrange, 111 AD3d 772, 774 [2013]; DeLeonibus v Scognamillo, 183AD2d 697, 698 [1992]).
We also reject the City's contention that the interrogatories submitted to the jury wereunfair and prejudicial to it. When considered in conjunction with the charge as a whole,the interrogatories did not create substantial confusion for the jury. The interrogatoriesand the jury charge were set forth in easily understandable language, and made clear thatthe jury had to first determine whether the City was negligent, and then determinewhether, if so, any such negligence was a substantial factor in causing the injuriessustained by the infant plaintiff (see Brewster v Prince Apts., 264 AD2d 611,615-616 [1999]; Booth v Penney Co., 169 AD2d 663, 664 [1991]). As the recordis devoid of any indication that the jurors were substantially confused, a new trial is notwarranted on that ground (see Somma v Seminario, 209 AD2d 687 [1994]).Moreover, under the circumstances presented here, the Supreme Court did not err ingiving a Noseworthy charge to the jury (see Noseworthy v City of NewYork, 298 NY 76 [1948]; Acevedo v Hog Wing Lau, 88 AD3d 751 [2011]; DeLuca v Cerda, 60 AD3d721-722 [2009]).
However, to the extent indicated herein, the damages awarded for past pain andsuffering and future pain and suffering deviated materially from what would bereasonable under the circumstances (see CPLR 5501 [c]; Belt v Girgis, 82 AD3d1028 [2011]; Dockery vSprecher, 68 AD3d 1043, 1046-1047 [2009]; Benefield v Halmar Corp., 25AD3d 633, 635 [2006]). Moreover, as there was no proof of loss of services, theaward in favor of the infant plaintiff's mother in the amount of $75,000 [*5]cannot be sustained (see Devito v Opatich, 215AD2d 714, 715 [1995]). Nonetheless, given the expert testimony elicited at trial, wedecline to disturb the awards for future medical expenses and future lost earnings (seePlacakis v City of New York, 289 AD2d 551, 553 [2001]).
There is no merit to the Pascarellas' contentions that the Supreme Court erred inadmitting evidence that, on one occasion prior to the subject accident, a ticket had beenissued to Louis Pascarella for speeding along Gerritsen Avenue, or in precluding thegrand jury testimony of a nonparty witness given in connection with the criminal chargesagainst Louis Pascarella arising from the subject accident. Nor is there merit to thePascarellas' contention that this witness should have been precluded from testifying attrial as to the visible signs of the infant plaintiff's injuries as they appeared to herimmediately after the subject accident.
The City's remaining contentions are without merit. Rivera, J.P., Balkin, Duffy andLaSalle, JJ., concur.