Senko v. Fonda

• Decision Date: 14 June 1976
• Citation: 384 N.Y.S.2d 849,53 A.D.2d 638
• Parties: Peter SENKO et al., Respondents, v. John FONDA, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 849

384 N.Y.S.2d 849

53 A.D.2d 638

Peter SENKO et al., Respondents, v. John FONDA, Appellant.

Supreme Court, Appellate Division, Second Department.

June 14, 1976.

Frank B. Gass, New York City, Robert J. McHenry, New York City, on the brief, for appellant.

Fuchsberg & Fuchsberg, New York City (Harvey Goldstein and Norman E. Frowley, New York City, of counsel), for respondents.

Before GULOTTA, P.J., and HOPKINS, LATHAM, MARGETT and SHAPIRO, JJ.

MEMORANDUM BY THE COURT.

In a negligence action to recover damages for personal injuries, etc., defendant appeals from a judgment of the Supreme Court, Nassau County, dated May 6, 1975, which is in favor of plaintiffs and against him, upon a jury verdict.

Judgment reversed, on the law and the facts, and new trial granted with respect to the issue of damages only, with costs to abide the event, unless, within 20 days after entry of the order to be made hereon, plaintiffs Peter Senko and Loretta Senko shall serve and file in the office of the clerk of the trial court written stipulations consenting to reduce the verdicts in their favor to $50,000 and $5,000 respectively, in which event, the judgment, as so reduced and amended, is affirmed, without costs or disbursements.

Plaintiff Peter Senko was hospitalized from January 29, 1970 until February 8, 1970. He returned to his job on a part-time basis in early March, 1970. In July, 1970, his doctor placed him on 'full activity', which, according to the doctor, meant that 'the patient could function at his maximal ability.' In October, 1970, the prognosis was that plaintiff was having a healing fracture involving the L--1 vertebra, that he had residual symptoms of pain and stiffness, and that those complaints might be of a permanent nature.

Plaintiff Peter Senko returned to fulltime work in November or December, 1970 and accomplished all phases of his job for at least the next 26 months. He was dismissed from his job in March, 1973, and attempted to find work. He was unsuccessful, but admitted that despite his employment experience as an inventory control specialist he had not sought a 'desk job'. In September, 1973 he was approved for Social Security disability benefits and thereafter ceased looking for employment. In October, 1973, exactly three years after his last visit to his doctor, he consulted his doctor for the purpose of substantiating his application for Social Security disability benefits.

The prognosis at that time was that plaintiff Peter Senko had sustained a compression fracture of the L--1 vertebra, that he was having residual pain in his lumbar spine, that he was having pain and numbness in his right leg, that he also had restricted mobility in his spine, and that based upon the duration of time which had passed, his symptoms were of a permanent nature. An examination conducted in March, 1975, at the request of his attorney, resulted in 'no change' in the prognosis. Plaintiff Peter Senko's medical bills totalled $1,825.

The jury, after 33 minutes of deliberation, returned a verdict of $71,500 for plaintiff Peter Senko and $10,000 for plaintiff Loretta Senko, for loss of services. Both awards are clearly excessive.

It is true that the amount of damages to be awarded for personal injuries is primarily a question of fact for the jury (Wolfe v. General Mills, 35 Misc.2d 996, 231 N.Y.S.2d 918; see Fitzgerald v. New York Central R.R. Co., 215 App.Div. 1, 212 N.Y.S. 749). However, where the verdict of a jury is contrary to the weight of the evidence, or where it is excessive or inadequate, the trial court is vested with the power, and has the duty, to set it aside and to order a new trial (Kligman v. City of New York, 281 App.Div. 93, 94, 117 N.Y.S.2d 436, 437; Hogan v. Franken, 221 App.Div. 164, 223 N.Y.S. 1). The exercise of this power rests in sound judicial discretion, based upon a careful consideration of the evidence (Hogan v. Franken, supra). Matters of discretion are clearly reviewable by the Appellate Division; whenever discretion is vested in the Supreme Court it may be exercised by the Appellate Division by way of a review of the action of Trial or Special Term (O'Connor v. Papertsian, 309 N.Y. 465, 471--472, 131 N.E.2d 883, 886--887). Where the exercise of discretion is at issue, certain standards of uniformity should be adhered to (see Miner v. Long Is. Light, Co., 47 A.D.2d 842, 847, 365 N.Y.S.2d 873, 880--881 (dissenting memorandum of Mr. Justice HOPKINS)).

This is not to say that the amount of damages awarded or sustained in cases involving similar injuries are in any way binding upon the courts in the exercise of their discretion (Mullady v. Brooklyn Heights R.R. Co., 65 App.Div. 549, 551, 72 N.Y.S. 911, 912). However, prior verdicts may guide and enlighten the court and in a sense, may constrain it (Mullady v. Brooklyn Heights R.R. Co., supra). 'A long course of practice, numerous verdicts rendered year after year, orders made by trial justices approving or disapproving them, decisions on the subject by appellate courts, furnish to the judicial mind some indication of the consensus of opinion of jurors and courts as to the proper relation between the character of the injury and the amount of compensation awarded' (Fried v. New York, New Haven & Hartford R.R. Co., 183 App.Div. 115, 125, 170 N.Y.S. 697, 704, affd. 230 N.Y. 619, 130 N.E. 917; see Conkey v. New York Cent. R.R. Co., 206 Misc. 1077, 136 N.Y.S.2d 189). It was observed in one early opinion: 'Long observation of the action of juries in cases of (similar) personal injury * * * affords a clue to the judgment of ordinary men as to the compensation that should be made for pain and suffering; and where a verdict is much above or much below the average, it is fair to infer, unless the case presents extraordinary features, that passion, partiality, prejudice, or some other improper motive has led the jury astray' (Jennings v. Van Schaick, 13 Daly 7, 8--9; see Becker v. Albany Ry., 35 App.Div. 46, 54 N.Y.S. 395).

Recent verdicts in cases involving comparable injuries have been much lower than the $71,500 award in the case at bar. In Bonder v. Berman, 43 A.D.2d 653, 349 N.Y.S.2d 819, the plaintiff's injuries consisted of a lacerated tongue which required eight stitches to close the wound, a lacerated chin requiring two stitches, a compression fracture of the vertebrae with a possible chip fracture at the fifth lumbar vertebra, a chip fracture at the fourth lumbar vertebra, a small corticle fracture of the humerus near the left shoulder joint, a fracture of the ninth and tenth ribs, neck strain and a contusion of the lower left lung. Plaintiff's medical bills were in excess of $1,900. The jury returned a verdict in the sum of $4,000. The Appellate Division, Third Department, increased the award to $8,000, noting that such a figure would be 'more reasonably representative' of the compensation due.

In Mastropolo v. John Lowry, Inc., 36 A.D.2d 817, 320 N.Y.S.2d 400, the plaintiff sustained a complete fracture of the transverse process of the third lumbar vertebra. Plaintiff's accrued special damages, at the time of trial, were about $5,000. The jury returned a verdict of $85,000, which was reduced to $40,000 by the trial court. The Appellate Division, First Department, further reduced the award to $20,000.

In Barnhouse v. Ladycliffe Coll., 34 A.D.2d 803, 311 N.Y.S.2d 529, plaintiff's Permanent injuries included degeneration of the disc between the fifth and sixth cervical vertebrae, radiculitis and postconcussion syndrome. She incurred protracted pain and partial disability and had to wear cervical collars, according to her activities, over an eight-year period. This court increased a verdict in her favor to $20,000.

In Rice v. Ninacs, 34 A.D.2d 388, 312 N.Y.S.2d 246, the plaintiff suffered permanent injuries to the cervical spine which involved limitation of motion, nerve root irritation and pressure with spasm and excruciating pain radiating down the left arm, numbness in the fingers, pain on rotation of the neck to the left, fracture of the left sixth rib, strain of the upper back and sprain and aggravation of the low back. The jury returned a verdict of $15,000 and the resulting judgment was affirmed by the Appellate Division, Fourth Department.

While none of the foregoing cases involve injuries precisely like those incurred by plaintiff Peter Senko, they do serve as a guide in considering whether the award to him was excessive. All involve spine and back injuries comparable to that suffered by Mr. Senko, and the special damages incurred in Bonder and Mastropolo are equivalent to, or greater than, the $1,825 incurred by Mr. Senko. This latter consideration, while not controlling, is often an aid to the jury and the court in arriving at, and reviewing, verdicts (Becker v. Ginsberg, 23 A.D.2d 916, 258 N.Y.S.2d 886). Even considering the effects of inflation, the verdict in the instant case is clearly excessive.

In view of the foregoing, it is clear that a $71,500 verdict for plaintiff could only be justified by a finding of Complete impairment of earning capacity. But such a finding would be contrary to the weight of the credible evidence. Plaintiff, despite a lengthy employment background an...