XVI/25-2 FALLDOWN SIDEWALK ICE BIMALLEOLAR ANKLE FRACTURE

Cynthia Brownell v. City of New York and New York City Housing Authority 130648/94 five-day trial Verdict 11/4/98 New York Supreme

Judge:      Phyllis Gangel-Jacob

Verdict: $709,222, reduced to $638,300 for 10% comparative negligence of Pltf. (5/1). Breakdown: $325,000 for past pain and suffering;$340,000 for future pain and suffering, $29,222 for past medical expenses; $15,000 for future medical expenses.

Remaining liability: City of New York 90%. Defense verdict for Housing Authority. Jury: 2 male, 4 female. A post-trial motion is pending.

Pltf. Atty: Glenn P. Dolan of Lipsig, Shapey, Manus & Moverman, P.C., Manhattan

Deft. Atty: Kate Karakassis, Asst. Corp. Counsel, for City of New York
Lawrence S. Wasserman of Gordon & Silber, Manhattan, for Housing Authority

Facts: Pltf., age 43 and unemployed at the time, claimed that on 1/23/94, she was injured when she slipped on ice at the northwest corner of E. 97th St. and 2nd Ave. in Manhattan. Pltf. testified that as she was walking southbound with her two children on the public sidewalk, she was about to enter the crosswalk, when she slipped and fell on the dirty patch of ice on the sidewalk curb cut. Pltf. claimed that for at least 5 days the City (90% liable) failed to remove the ice from the corner cap. She also contended that the Housing Authority (defense verdict), as the abutting landowner, failed to properly clear snow and ice from the sidewalk and corner cap, creating an even more dangerous condition. Pltf.'s expert testified that the Housing Authority's use of a straight-edged bobcat tractor to clear the curved surface was a concurrent factor in creating the icy condition. The City argued that the area was adequately cleared, and denied that it had notice of a dangerous condition. The Housing Authority denied that its actions created a more dangerous condition, and argued that Pltf.'s claim was speculative and was not supported by any concrete evidence.

Injuries: bimalleolar fracture of the right ankle, requiring four surgical procedures over the course of 2 years following the accident. Pltf. claimed that she will require either arthroscopic surgery or ankle fusion surgery in the future. She testified that she has difficulty walking, and uses a cane to ambulate. Defts. argued that Pltf. was noncompliant with elevation instructions, and began premature weight-bearing. Demonstrative evidence: photos of the accident site; weather reports; X-rays; models of patient's feet; model of the ankle. Jury deliberation: 41 hours. No offer; demand: $350,000; amount asked of jury: over $1,155,000.

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