Donlon v. City of NY

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Milton L. Williams; PER CURIAM; All concur except Mazzarelli; MAZZARELLI
• Citation: Donlon v. City of NY, 727 N.Y.S.2d 94, 284 AD2d 13 (N.Y. App. Div. 2001)
• Decision Date: 28 June 2001
• Parties: (A.D. 1 Dept. 2001) William Donlon, Plaintiff-Respondent, v. The City of New York, et al., Defendants-Appellants. 3741 : FIRST JUDICIAL DEPARTMENT

Page 94

727 N.Y.S.2d 94 (A.D. 1 Dept. 2001)

William Donlon, Plaintiff-Respondent, v. The City of New York, et al., Defendants-Appellants.

3741

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: FIRST JUDICIAL DEPARTMENT

June 28, 2001

Edward J. Guardaro, Jr., of counsel (Kitson, Kitson & Bisesto, attorneys) for plaintiff-respondent,

Kathleen Alberton, of counsel (Larry A. Sonnenshein, on the brief, Michael D. Hess, Corporation Counsel of the City of New York, attorney) for defendants-appellants.

Milton L. Williams, J.P.

Angela M. Mazzarelli

Richard W. Wallach

John T. Buckley

David Friedman, JJ.

PER CURIAM

This is an appeal from a money judgment based upon a jury verdict awarding plaintiff damages for past and future pain and suffering. The defendant contends that the award is excessive. This requires our review pursuant to CPLR 5501(c). The issue is whether the award is excessive in that it deviates materially from what would be reasonable compensation. For the reasons set forth below we find that the award for future pain and suffering is excessive in that it deviates materially from what would be reasonable compensation and should be reduced by twenty percent to $400,000.

CPLR 5501(c), as amended by Laws 1986, ch. 682, § 10, one of many tort reform innovations added in the mid-1980s, requires that:

In reviewing a money judgment in an action in which an itemized verdict is required by rule forty-one hundred eleven of this chapter in which it is contended that the award is excessive or inadequate and that a new trial should have been granted unless a stipulation is entered to a different award, the appellate division shall determine that an award is excessive or inadequate if it deviates materially from what would be reasonable compensation.

CPLR 5522(b) requires that we identify the reasons for our decision. This case, as briefed and argued by the parties, involves the future pain and suffering award to a man in his 30s who fell 25 feet, fractured two vertebrae, recovered and returned without any restrictions to his former employment which requires regular sudden and sustained physical exertion including heavy lifting. Our review does not involve plaintiff's economic losses and does not involve the jury's award for past pain and suffering. The legislative scheme, fashioned as a remedy for an insurance crisis marked by spiraling costs and unavailability of liability coverage, requires that we look to similar appealed verdicts and exercise our judgment to promote greater stability in the tort system and greater fairness for similarly situated defendants (Laws 1986, ch. 682, Executive Memorandum at 3184; see generally Gasperini v Center for Humanities, 518 US 415, 422-425, and New York Appellate Practice, Thomas Newman, § 4.10). The 1986 tort reforms were occasioned by an insurance crisis, a main determinant of which were the "laws and doctrines governing civil liability for money damages in New York State" ("Insuring Our Future - Report of the Governor's Advisory Commission on Liability Insurance," Hugh R. Jones, Chairman, April 7, 1986 at 39). The Jones Commission Report (on which the legislative reforms were based) focused on pain and suffering awards as a driving force behind the "cost surge" which threatened the ability to obtain insurance coverage and posed a threat to self-insured municipal corporations ("Insuring Our Future" at 137-152). The Jones Commission recommended a $250,000 cap on non-economic damages against municipal corporations due to inherent problems with jury determinations of reasonable compensation:

"All of us are moved by the pain and anxiety that most people who suffer more than minor injuries go through. Our natural tendency is to want to help. Inasmuch as there is no objective way to value these harms, our inclination is to err on the high side. Over time, this tendency gathers its own momentum, a momentum which has no natural curbing force. Particularly in an era where the existence of insurance is commonly assumed, so that the defendant is not expected to bear most of the loss, the urge to provide the most assistance possible becomes nearly irresistible."

("Insuring Our Future" at 85).

Although the Legislature ultimately rejected the Jones Commission recommendation to impose a $250,000 cap on non-economic damages in personal injury awards against municipal corporations, CPLR 5501(c) was adopted as a reform to the former "shock the conscience" appellate review of damage awards. The "natural curbing force" to check the upward spiral of non-economic jury awards is the review which we are charged to perform by CPLR 5501(c).

The method of that review is to evaluate whether the appealed award deviates materially from comparable awards. Such a method cannot, due to the inherently subjective nature of non-economic awards, be expected to produce mathematically precise results, much less a per diem pain and suffering rate. Our task necessarily involves identification of relevant factual similarities and the application of reasoned judgment.

Appellate review under CPLR 5501(c) has also, alternatively, determined "reasonableness" by whether or not the jury's decision is in any way supported by record evidence (Simeon v. Urrey, 2000 N.Y. App Div Lexis 13116; Rodriguez v. City of New York, 191 A.D.2d 420). The 1986 amendment to of CPLR 5501(c) replaced the prior "shocks the conscience" review (Harvey v. Mazal American Partners, 79 N.Y.2d 218, 225). This new standard "in design and operation[,] influences outcomes by tightening the range of tolerable awards." (Gasperini v. Center for Humanities, 518 U.S. 415, 425). For more than a decade appellate review has been performed by analogizing an appealed case with relevant precedent and "tightening the range" to accomplish the purposes of the 1986 reform. The present appeal involves case comparison reasonableness.

While the dissent characterizes appellate court comparison of cases as a "tenuous endeavor," analysis of appealed verdicts using CPLR 5501(c) is not optional but a legislative mandate. Case comparison cannot be expected to depend upon perfect factual identity. More often, analogous cases will be useful as benchmarks. Perceived difficulties in the application of a legal standard, while they may suggest a need for the Legislature to consider reform or repeal, can not provide a basis for judicial nullification of the current law. Review of jury verdicts often involves questions of fact on which the trier of fact is afforded deference; the issue of material deviation, however, is a mixed question of law and fact which has been legislatively committed to judicial oversight. See McKinney's Consolidated Laws of New York Annotated, Book 2, p. 400, New York State Constitution, Art. 6, § 30; and, Cohn v. Borchard Affiliations, 25 N.Y.2d 237. The dissent casts this appealed future pain and suffering verdict as a question of fact. No jury can determine the issue of material deviation and we cannot, consistent with CPLR 5501(c), attempt to use the rationale of deference to a jury verdict in resolving that issue when we are supposed to compare analogous verdicts. While we agree with plaintiff that the jury verdict does not deviate materially with respect to the amount awarded as compensation for past pain and suffering ($400,000), we find that the award for future pain and suffering ($500,000) deviates materially from what is reasonable compensation and should be reduced by twenty percent to $400,000.

William Donlon is a New York City firefighter who sustained serious injuries to his back in October 1992 when he fell 25 feet through a hole in the firehouse second floor where the sliding pole was situated. Plaintiff's injuries of two fractured lumbar vertebrae and a herniation of a third vertebrae resulted in hospitalization for eight days and a three-month return to his mother's home, where he received assistance for most activities of daily living. Treatment for his injuries ranged from the administration of pain medication during his hospital stay to the wearing of a corset for six months. At the end of six months, plaintiff returned to part-time duty which consisted of security and clerical work. While no longer on prescribed medication, plaintiff attended a rehabilitation center twice a week where he engaged in physical therapy. As a result of plaintiff's singular determination to pursue his career as a firefighter, he returned to full-time duty slightly more than a year after his fall.

Between his November 1993 return to work and the December 1999 jury verdict in this action, plaintiff received no medical treatment for his injuries, was unrestricted in performing his work responsibilities, which include entering burning buildings and carrying individuals to safety, took no prescription medications for persisting pain and planned no further medical intervention to correct any remaining physical problems caused by his injuries. Although plaintiff's consultative specialist testified, he never explained the patent contradiction between plaintiff's self-described pain and the foregoing undisputed facts of his recovery.

The contrast between the pain experienced by plaintiff during the year immediately following his tragic fall and the future pain and suffering anticipated by plaintiff despite his unrestricted return to work based on his condition at the time of trial draws attention to the greater award made for future pain and suffering. Dr. Weintraub, a board certified neurologist, testified that plaintiff sustained his injuries as a result of an "enormous amount of force" when he fell down the pole hole and there can be no doubt that during the time immediately after his fractures, plaintiff suffered excruciating pain. Plaintiff was then faced with a year-long ordeal to recover his abilities to take care of his own personal needs and to resume gainful employment. Due in no small part to his own commitment to...