Ganapolsky v. Park Gardens Development Corp., 7600.

Decision Date08 March 1971
Docket NumberNo. 7600.,7600.
Citation439 F.2d 844
PartiesIsrael GANAPOLSKY et al., Plaintiffs, Appellees, v. PARK GARDENS DEVELOPMENT CORP. et al., Defendants, Appellants.
CourtU.S. Court of Appeals — First Circuit

Ricardo L. Rodriguez with whom Alex Gonzalez and Gonzalez & Rodriguez, San Juan, Puerto Rico, were on brief, for appellants.

Herman W. Colberg, San Juan, Puerto Rico, with whom Reichard & Colberg, San Juan, Puerto Rico, was on brief, for appellees.

Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.

McENTEE, Circuit Judge.

Plaintiffs, Dr. and Mrs. Israel Ganapolsky, brought this diversity suit against Park Gardens Development Corporation and its insurer, United States Fidelity and Guaranty Company, for damages sustained by Dr. Ganapolsky allegedly due to Park Gardens' negligence. The jury awarded $50,000 to Dr. Ganapolsky and $10,000 to his wife. The district court denied defendants' motion for a new trial, and defendants appeal.

In reviewing the jury's verdict we take the evidence in the light most favorable to plaintiffs. On the evening of April 5, 1967, Dr. Ganapolsky went to visit his friend Ramon Mellado, who lived in the newly-developed Park Gardens section of Rio Piedras, Puerto Rico. Mellado was planning to take Dr. Ganapolsky to see an accountant to help him fill out his income tax return. Mellado sent Ganapolsky out to the car while he went to get something. Outside, Ganapolsky spotted a sign on a new house across the street and walked over to see it. While crossing a cement strip between the street and the sidewalk in front of the new house, his left foot caught in a hole, causing him to slip, twist his left leg and knee, and fall to the ground. The hole had been constructed for a water meter by Park Gardens, which had built the new house. There was testimony at trial that Park Gardens had a policy of leaving the water meter hole in front of each new house uncapped until after the house was sold, since the caps had frequently been stolen and were expensive to replace.

Defendants' principal contention is that the damages awarded by the jury are excessive. This court has often expressed its reluctance to overturn a jury award unless it is so excessive that the district court's refusal to order a new trial constitutes a manifest abuse of discretion. Compare Boston & Me. R. R. v. Talbert, 360 F.2d 286, 291-292 (1st Cir. 1966), and Commercial Union Insurance Co. v. Gonzalez Rivera, 358 F.2d 480, 484 (1st Cir. 1966), with Compania Trasatlantica Espanola, S. A. v. Melendez Torres, 358 F.2d 209, 214 (1st Cir. 1966).

In reviewing the award, we "make a detailed appraisal of the evidence bearing on damages." Grunenthal v. Long Island R. R., 393 U.S. 156, 159, 89 S.Ct. 331, 333, 21 L.Ed.2d 309 (1968). Dr. Ganapolsky testified that at the time of the accident he was making $1500 per month. He was unable to work for three months (loss of earnings: $4500) and then, because the pain in his leg made it impossible to work the long hours required in his former job, he was forced to take a new job paying only $850 per month (loss of earnings of $650 per month over twenty-two months: $14,300). In May 1969 he began supplementing his income with a private practice which yielded an average of $200 per month, and in July 1969 his monthly salary was raised to $900 (loss of earnings from May 1969 until the end of trial: $2500). Plaintiff also testified that he expected to undergo surgery recommended by his physician, immediately after which he would be unable to work and would lose an additional $3300 in earnings. We conclude that the jury could reasonably have awarded plaintiff $24,600 for lost earnings.

There was testimony regarding the following medical expenses:

                Orthopedic surgeon's fee      $1,000
                Orthopedic chair                 150
                Brace and special shoes          220
                Medicine                         100
                                              ______
                                              $1,470
                

Thus, $26,070 of the $50,000 verdict could reasonably have been assigned by the jury to special damages. That leaves $23,930 to cover such intangibles as pain and suffering from the accident and from the anticipated operation, the risk of a complication during the operation, and about a 10% or 15% disability which plaintiff was expected to have even after surgery.*

Dr. Jorge Rivera Diaz, the orthopedic surgeon who treated Dr. Ganapolsky, testified that he believed Ganapolsky had torn the lateral miniscus, which is a piece of cartilage in the knee. He applied a cylinder cast which immobilized the knee for three to four weeks. After the cast was removed, Ganapolsky was forced to use crutches, then a cane, and finally a long leg brace. At the time of trial — some two-and-a-half years after the accident — he still had severe pains in his knee, particularly when standing or walking up and down stairs, and continued to experience a locking sensation in the knee on the average of two-to-three times a month. His ability to flex the knee was limited, and the muscles in his left thigh had atrophied.

After the cast was removed, Ganapolsky began to undergo physiotherapy. But, shortly thereafter, Dr. Rivera Diaz determined that the physiotherapy was not working and recommended surgery. Ganapolsky delayed in undergoing surgery because, as a former surgical resident, he was aware of the uncertainty of success and the risks involved. Dr. Rivera Diaz testified in detail about those risks, emphasizing that the joint is a very delicate structure, easily incapacitated by infection or eroded by bacteria. He noted that there is also always a risk involved in anesthesia, particularly with an obese patient like Ganapolsky.

Dr. Rivera Diaz further stated that Ganapolsky would probably be partially disabled even after the operation. The cartilage removed during the surgery...

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20 cases
  • Air Crash Disaster Near Chicago, Illinois on May 25, 1979, In re
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • 25 Mayo 1979
    ...the public policy of Puerto Rico, since Puerto Rico does not allow punitive damages in tort actions. Ganapolsky v. Park Gardens Development Corp., 439 F.2d 844, 846 (1st Cir. 1971); Cooperativa de Seguros Multiples v. San Juan, 289 F.Supp. 858, 859-60 (D.P.R.1968). Therefore, the district c......
  • IN RE AIR CRASH DISASTER NEAR CHICAGO, ETC.
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    • U.S. District Court — Northern District of Illinois
    • 29 Mayo 1980
    ...the public policy of Puerto Rico, since Puerto Rico does not allow punitive damages in tort actions. Ganapolsky v. Park Gardens Development Corp., 439 F.2d 844, 846 (1st Cir. 1971); Cooperative de Seguros Multiples de Puerto Rico v. San Juan, 289 F.Supp. 858, 859-60 As for actions originall......
  • Carrillo v. Samaeit Westbulk
    • United States
    • U.S. District Court — District of Puerto Rico
    • 13 Marzo 1974
    ...that the district court's refusal to order a new trial constitutes a manifest abuse of discretion", Ganapolsky v. Park Gardens Development Corp. (1 Cir. 1971), 439 F.2d 844, 846, or "palpably excessive", Braunstein v. Massachusetts Bank & Trust Co. (1 Cir. 1971), 443 F.2d 1281, 1285. The ev......
  • Gonzalez v. MCS Life Ins. Co. (In re Gonzalez)
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    • U.S. Bankruptcy Court — District of Puerto Rico
    • 2 Noviembre 2012
    ...damages." Ramirez de Arellano v. Eastern Airlines, Inc., 629 F. Supp. 189, 192 (D.P.R. 1985), quoting Ganapolsky v. Park Gardens Development Corp., 439 F.2d 844 (1st Cir. 1971) and Carrasquillo v. Lippitt & Simonpietri, Inc., 98 P.R.R. 646 (1970). Also see Guardiola Alvarez v. Depto. de la ......
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1 books & journal articles
  • Punitive damages: when, where and how they are covered.
    • United States
    • Defense Counsel Journal Vol. 62 No. 4, October 1995
    • 1 Octubre 1995
    ...(public policy barred coverage of punitive damages under automobile policy). Puerto Rico Ganapolsky v. Park Gardens Development Corp., 439 F.2d 844 (1st Cir. 1971), and Cooperativa de Seguros Multiples v. San Juan, 289 F.Supp. 858 (D. P.R. 1968) (Puerto Rico does not allow recovery of punit......

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