Walsh v. State

• Decision Date: 31 October 1996
• Citation: 648 N.Y.S.2d 816,232 A.D.2d 939
• Parties: Gregory M. WALSH et al., Respondents, v. STATE of New York, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 816

648 N.Y.S.2d 816

232 A.D.2d 939

Gregory M. WALSH et al., Respondents, v. STATE of New York, Appellant.

Supreme Court, Appellate Division,

Third Department.

Oct. 31, 1996.

Friedman, Hirschen, Miller, Coughlin & Campito (Michael C. Rizzo of counsel), Schenectady, for appellant.

Roche, Corrigan, McCoy & Bush (Robert P. Roche of counsel), Albany, for respondents.

Before CARDONA, P.J., and MIKOLL, CREW, YESAWICH and SPAIN, JJ.

YESAWICH, Justice.

Appeals from two judgments of the Court of Claims (Benza, J.), entered May 24, 1995 and October 6, 1995, upon a decision of the court in favor of claimants.

Claimant Gregory M. Walsh (hereinafter claimant), an electrician since 1983, was injured in 1987 when he fell approximately 30 feet while working at the State Education Building in the City of Albany. Claimant, who was 28 years old at the time of the accident, together with his wife, derivatively, commenced suit against the State seeking damages for his injuries. Following a bifurcated trial, the Court of Claims awarded claimant $1,000,000 for past pain and suffering, $750,000 for future pain and suffering, $64,364 for past economic loss and $1,200,000 for future economic loss, for a total award of $3,014,364. In addition, claimant's wife was awarded $60,000 for the past care of claimant and loss of services, and another $125,000 for future losses. The State appeals.

Prefatorily, it should be noted that the trial was held without a jury, and although deference must be accorded to the trial court's assessment of credibility issues, we may, nevertheless, independently consider the probative weight of the evidence and the inferences that may be drawn therefrom, and grant the judgment that we deem the facts warrant (see, Northern Westchester Professional Park Assocs. v. Town of Bedford, 60 N.Y.2d 492, 499, 470 N.Y.S.2d 350, 458 N.E.2d 809; Hoover v. Durkee, 212 A.D.2d 839, 841, 622 N.Y.S.2d 348). This court's authority, in this regard, extends to the making of appropriate damage awards (see, Rivera v. State of New York, 205 A.D.2d 602, 603, 613 N.Y.S.2d 253; Karagiannis v. New York State Thruway Auth., 187 A.D.2d 1009, 1010, 590 N.Y.S.2d 970, lv. dismissed 81 N.Y.2d 835, 595 N.Y.S.2d 397, 611 N.E.2d 298).

With respect to the portions of the award intended to compensate claimant for his past and future pain and suffering ($1,000,000 and $750,000, respectively), and the amounts awarded on the derivative claim (totaling $185,000), it is the State's contention that these sums deviate materially from awards made in other, allegedly comparable, cases. A review of past decisions, however, indicates that the sums awarded are not excessive, given the severity of claimant's injuries, as a consequence of which he was required to undergo a spinal fusion and bone graft, as well as two other operations to correct problems caused by loss of nerve function in his foot and leg (see, e.g., Eschberger v. Consolidated Rail Corp., 174 A.D.2d 983, 985, 572 N.Y.S.2d 539, lv. denied 79 N.Y.2d 752, 580 N.Y.S.2d 198, 588 N.E.2d 96, cert. denied 503 U.S. 1011, 112 S.Ct. 1778, 118 L.Ed.2d 435; Kirschhoffer v. Van Dyke, 173 A.D.2d 7, 10-11, 577 N.Y.S.2d 512). Notably, the testimony adduced at trial established that claimant's fall resulted in permanent nerve damage and significant loss of function in his back and lower extremities, limb disfigurement and ongoing pain. Formerly an active young man and father of two, claimant has had to modify or curtail his own work and leisure activities, as well as his participation in the pursuits of his young children. His ability to do household chores and to care for his children has also been markedly diminished. Considering these substantial and permanent limitations on claimant's activities, the pain he has endured, and the sacrifices his wife has had to make to care for him and maintain their household, the amounts awarded are not unreasonable.

Turning to the award of $1,200,000 for future lost earnings, a review of the record reveals that this sum exceeds the amount of compensation warranted by the evidence. The rule with respect to lost earnings is that such a loss "must be...