Wendell v. Supermarkets General Corp.
| Decision Date | 28 January 1993 |
| Citation | 592 N.Y.S.2d 895,189 A.D.2d 1063 |
| Parties | Freida WENDELL et al., Respondents, v. SUPERMARKETS GENERAL CORPORATION, Doing Business as Pathmark Supermarket, Appellant. |
| Court | New York Supreme Court — Appellate Division |
O'Connor, McGuinness, Conte, Doyle, Oleson & Collins (Dennis L. O'Connor Jr., of counsel), White Plains, for appellant.
Friedman, Levy, Goldfarb & Weiss, P.C. (Ira H. Goldfarb, of counsel), New York City, for respondents.
Before MIKOLL, J.P., and YESAWICH, MERCURE, CREW and CASEY, JJ.
Appeal (transferred to this court by order of the Appellate Division, Second Department) from an order of the Supreme Court (Stolarik, J.), entered July 30, 1991 in Rockland County, which granted plaintiffs' motion to set aside a verdict rendered in favor of plaintiff Freida Wendell as inadequate and granted a new trial unless defendant stipulates to an increased verdict.
On August 8, 1987, 54-year-old plaintiff Freida Wendell (hereinafter plaintiff) sustained injuries when she slipped and fell in defendant's supermarket. Negligence actions by plaintiff and her husband, seeking damages for personal injuries and derivative losses, followed. After a bifurcated trial, plaintiff was awarded $15,000 for past pain and suffering, $15,000 for future pain and suffering, $4,617 for past medical expenses, $5,000 for future medical expenses and $15,000 for past loss of earnings. Nothing was awarded for future loss of earnings and plaintiff's husband received no award for loss of services.
Supreme Court granted plaintiffs' motion to set aside the jury's pain and suffering verdict, finding it "so inadequate as to shock the conscience of the Court". A new trial was ordered unless defendant stipulated to pay plaintiff $75,000 for past pain and suffering and $100,000 for future pain and suffering. Defendant appeals.
Given that the jury awarded plaintiff damages for pain and suffering, medical expenses and lost wages, it necessarily follows that it found the proof sufficient to establish a causal connection between the accident and her injuries. Furthermore, the award for future pain and suffering, which the jury expressly indicated on the verdict sheet was intended to cover a period of 25 years (her life expectancy was 25 years), confirms that it found plaintiff's injuries to be permanent.
These findings are not against the weight of the evidence, as urged by defendant; to the contrary, it was undisputed that plaintiff had experienced two herniated discs, with impingement on the spinal cord and compression of a nerve leading to her shoulder and arm, and there was ample medical proof that this caused her pain. Although defendant's medical expert speculated that there could be other causes of the pain plaintiff had endured and would endure, he offered no proof nor even a firm opinion as to a different cause. On cross-examination, he agreed that the pain was consistent with that caused by herniated discs, and further agreed that if as plaintiff testified that immediately after the fall she experienced neck pain radiating into her right shoulder and a diminution of her physical abilities, he would believe that there was a causal relationship between her symptoms and the accident. When considered with the proof offered on plaintiff's behalf, there is clearly sufficient evidence from which a jury could find that the accident caused the injuries themselves and plaintiff's continuing symptoms. Indeed, if the jury had not so found, there would be no basis for condoning even the modest verdict that was actually awarded.
In a tort case such as this, CPLR 5501(c) dictates that the Appellate Division overturn a jury's money verdict when it "materially deviates" from what is considered reasonable compensation. As this same standard has been held to apply to a trial court (see, Shurgan v. Tedesco, 179 A.D.2d 805, 806, 578 N.Y.S.2d 658), it is necessary initially to assess whether Supreme Court acted judiciously when it overturned the jury's verdict. If that decision was made in accordance with the appropriate standard, and the original verdict was, indeed, inadequate, only then may we consider whether the court's substituted verdict is appropriate.
Trial testimony elicited from plai...
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Rounds v. Rush Trucking Corp., 95-CV-497S(F).
...to future pain and suffering, the age of the plaintiff, and his life expectancy. Further, in Wendell v. Supermarkets General Corporation, 189 A.D.2d 1063, 592 N.Y.S.2d 895 (3d Dep't.1993), the court increased a jury verdict for future pain and suffering awarded to a 54 year old woman with a......
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Douglass v. St. Joseph's Hosp.
...A.D.2d 876, 651 N.Y.S.2d 685; Levine v. East Ramapo Cent. School Dist., 192 A.D.2d 1025, 597 N.Y.S.2d 239; Wendell v. Supermarkets Gen. Corp., 189 A.D.2d 1063, 1064, 592 N.Y.S.2d 895). The trial court's decision on the motion to set aside the verdict is likewise to be accorded deference (se......
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Ragona v. Wal-Mart Stores, Inc.
...demonstrates that the jury did not find Mrs. Ragona's injuries to be of a permanent nature. See Wendell v. Supermarkets Gen. Corp., 189 A.D.2d 1063, 592 N.Y.S.2d 895, 896 (3d Dep't 1993) (finding that a jury award covering a period of years equal to that of plaintiff's life expectancy "conf......
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Raucci v. City School Dist. of City of Mechanicville
...compensation in the circumstances (see, Florsz v. Ogruk, supra, at 547, 585 N.Y.S.2d 220; see also, Wendall v. Supermarkets Gen. Corp., 189 A.D.2d 1063, 1065, 592 N.Y.S.2d 895; Murphy v. Estate of Vece, 173 A.D.2d 445, 570 N.Y.S.2d 71). We have examined the cases relied upon by plaintiff to......