Figliomeni v. Board of Ed. of City School Dist. of Syracuse

• Decision Date: 02 December 1975
• Citation: 341 N.E.2d 557,379 N.Y.S.2d 45,38 N.Y.2d 178
• Parties: , 341 N.E.2d 557 Rocco FIGLIOMENI, an infant, by Frank Figliomeni, his father, Respondent, v. BOARD OF EDUCATION OF the CITY SCHOOL DISTRICT OF SYRACUSE et al., Appellants, et al., Defendant.
• Court: New York Court of Appeals Court of Appeals

Page 45

379 N.Y.S.2d 45

38 N.Y.2d 178, 341 N.E.2d 557

Rocco FIGLIOMENI, an infant, by Frank Figliomeni, his father, Respondent, v. BOARD OF EDUCATION OF the CITY SCHOOL DISTRICT OF SYRACUSE et al., Appellants, et al., Defendant.

Court of Appeals of New York.

Dec. 2, 1975.

Edward P. Kearse, Corp. Counsel, Syracuse, for appellants.

Norman H. Dachs, Mineola, for respondent.

FUCHSBERG, Justice.

The question presented on this appeal is whether, on setting aside an $18,000 jury verdict for plaintiff, on the ground of inadequacy, in an action for damages arising out of personal injuries, the trial court properly exercised its discretion in ordering a new trial on the issue of damages alone rather than on the issues of both negligence and damages.

Defendants, contending that an entirely new trial was required, argued that the verdict represented an impermissible compromise as to liability as well as damages, but the Appellate Division, Fourth Department, rejected that contention and unanimously sustained the trial court (40 A.D.2d 954, 339 N.Y.S.2d 448). Upon retrial of the damages issue, this time before a Judge sitting without a jury plaintiff received an award of $125,000, which, on plaintiff's appeal, was modified by the Appellate Division, which increased it to $175,000. (44 A.D.2d 886, 355 N.Y.S.2d 514). Our court having dismissed defendants' motion for leave to appeal to us from the affirmance of the order granting the second trial on grounds of nonfinality (32 N.Y.2d 686, 343 N.Y.S.2d 361, 296 N.E.2d 258), the judgment entered after the second trial, as modified by the Appellate Division, pursua to CPLR 5501 (subd. (a), par. 1), brings up for review the original order granting the new trial.

The judgment should be affirmed for the reasons that follow.

The proof of liability which the original Trial Judge had before him appears to have been considerable. On May 20, 1966, Rocco Figliomeni, then 14 years of age, had already long been a severely handicapped child. Among other things, he had but one eye, his I.Q. was 73 and, as a result of a preexisting pathological condition, the shape of his head in general, and the location of his eye in particular, were in the words of his trial counsel 'distorted', 'depressed', 'indented' and 'protruberant'. Because of his condition, he was enrolled at one of defendant Board of Education's schools, in a special class for children with severe problems.

The defendant Joseph Gangemi was a teacher assigned to care for and instruct these children. The physical and athletic activities the children were permitted to engage in consisted merely of skipping, jumping and playing with a small soft ball. Nevertheless, Gangemi, in the course of play with the class, threw a hard baseball to Rocco; the ball apparently struck him on the head. Gangemi had never taken the trouble to read Rocco's available health card, which would have alerted him to the danger of exposing this child to such a potential source of injury, a fact underlined by the testimony of the school nurse. He conceded that, had he known the contents of the card, he would not have thrown the ball.

Confirmatory testimony as to defendants' departure from appropriate safety standards also came from Lauren B. Sutherland, a highly-qualified health education expert, as well from the published safety recommendations of the State Education Department. Any serious contest on this issue was dissipated when Genevieve Doud, a teacher called as a witness in behalf of the defendant, testified that she would not have allowed Rocco to engage in a game with a hard baseball, and that it was the duty of teachers assigned to children like Rocco to protect them against themselves. Indeed, just about the only attempt at a liability defense was defendants' rather feeble reliance on Gangemi's assertion that, from approximately a hundred feet away, the distance that he had propelled the ball, he could only see that Rocco's glasses fell from his face and that the ball dropped to the ground from the direction of the boy's upraised gloved hand. Though Rocco's own testimony, understandably in the light of his handicaps, was somewhat confused, the only other eyewitness testified that the boy was indeed struck in the head.

At the time of the occurrence, Rocco's immediate complaints were minimal. After first attending a class, he went home. Because of the onset of drowsiness from which he could not be aroused, he was hospitalized. Among other things, tests performed at that time showed deformation of the arteries in the left frontal area of his brain. Surgical inspection by means of a craniotomy, performed by drilling burr holes through the skull, were reported to have disclosed a splintered, depressed fracture of the frontal bone. In the same area, though, the surgery also revealed fibromatosis, which the patient was known to have had long before the accident and which is characterized by bony and soft tissue tumors. About a month later, it was discovered that the surgical wound had been permitted to become infected. This required further surgery to remove infected bone and left an area through which a part of the brain could be seen pulsating under a covering of skin.

Well over two years later, Rocco experienced the first of a series of episodes which have since turned out to be recurrent epileptic seizures. Before the epilepsy, Rocco had apparently enjoyed a sufficient recovery to enable him even to have taken gainful employment as 'a food serv or dishwasher'. However, during the later convulsive episodes, on a number of occasions he fell and struck his head, thus sustaining additional injuries. By the time of the second trial, seven years after the accident, his seizures were still unrelieved.

At common law, if a verdict was required to be set aside for inadequacy or excessiveness, a new trial on all issues was ordered (Edie v. East India Co., 1 Black W 295, 298, 96 Eng.Rep. 166, 167; Seventeenth Annual Report of N.Y. Judicial Council, 1954, pp. 181, 192--204). In more modern practice, however, and in New York since 1951, it has come to be recognized that, where liability and damages are neither intertwined nor the result of a trade-off of a finding of liability in return for a compromise on damages, the court is empowered to limit the new trial to the issue of damages alone. (CPLR 4404; Pfeifer v. Empire Merchandising Co., 33 A.D.2d 565, 305 N.Y.S.2d 245; Hempel v. Jenkins, 28 A.D.2d 1086, 284 N.Y.S.2d 26, affd., 24 N.Y.2d 822, 300 N.Y.S.2d 840, 248 N.E.2d 592; Mercado v. City of New York, 25 A.D.2d 75, 265 N.Y.S.2d 834; see, generally, New Trial as to Damages Only, Ann., 29 A.L.R.2d 1199.)

Here, if the entire catalogue of Rocco's medical conditions is regarded as causally connected to the incident of the hard ball striking him, it was certainly well within the discretion of the Trial Judge to set aside the $18,000 verdict for inadequacy (Crellin v. Van Duzer, 269 App.Div. 806, 55 N.Y.S.2d 590; Damages--Injury to Head or Neck, Ann., 11 A.L.R.3d 370, 687), and it was for him to determine whether retrial should be on the damages issue alone. But it did not necessarily follow that, because the damages were inadequate, they were the result of an impermissible compromise or, if they were, that the compromise reached the liability issue. It is only when it can be demonstrated that an inadequate verdict could only have resulted from a compromise on the liability issue that the court must revert to the former rule requiring retrial on all issues. As we analyze the case before us, it presents a multiplicity of factors militating against any necessary conclusion that the damages' inadequacy infected the liability determination.

Parenthetically, it should be noted that this case is not like those where an amount due is fixed and certain, indeed liquidated, as in some contract actions, so that, if a party recovers at all, he must recover the full amount (Friend v. Morris D. Fishman, Inc., 302 N.Y. 389, 98 N.E.2d 571). In such cases, a compromise on the question of the underlying breach becomes self-evident. In contradt, it is the rule rather than the exception that, in cases calling for the monetary evaluation of bodily and emotional injuries and the frequently subjective pain and suffering that may flow from them, that a wide and diverse range of opinion is to be expected among triers of the fact, whether Judges or jurors. Of the latter, some may be skeptics, others stoics and still others stoical about the ability of others to endure pain. There are those too who, consciously or unconsciously, react unfavorably to the law's measurement of such noneconomical injury in terms of dollars and cents. On the other hand, there are those who have opposite, even hypersensitive, views about the plight of injured persons. Obviously, then, whether a jury consists of a preponderance of individuals of the one stripe or the other will make a world of difference in the quantum of damages which it awards.

Interestingly, wise Trial Judges can usually gauge the character of jurors selected for a particular case and are able, with a remarkably high degree of accuracy, to predict how they will vote on specific issues in the case. Nor need confirmation wait until the outcome of the trial. To the alert observer, it often comes from facial expressions, gestures and discernable reactions to testimony long before then. The opportunity to evaluate them is one of the recognized advantages a Trial Judge has over an appellate Judge. Just as, first hand, he has seen and observed the witnesses, their personalities, their hesitancies, their tones of voice, the many other details by which people reveal themselves when under fire, he has also been afforced a similar opportunity to observe the jurors. The Trial Judge here had that opportunity and was in a position to sense whether the liability which seems, on the record here, so clear, nevertheless appeared to present...