Week of June 11-17

In Sermoneta v. New York City Tr. Auth., decided yesterday, the Appellate Division, First Department added to our understanding of sustainable awards for knee injuries. The case involved a slip and fall on “slime oozing from a trash can on a subway platform.” The Manhattan jury awarded $700,000 for past pain and suffering and $2 million for future pain and suffering over 15 years. The Appellate Division affirmed the past award, but reduced the future award to only $1 million.

The court explained: “The award of $700,000 for five years of past pain and suffering, although high, is not excessive … Plaintiff continues to experience pain and difficulty bending her knee as a result of traumatic arthritis caused by the accident. In addition, she presented voluminous evidence of mental anguish and loss of enjoyment of life, including testimony by her treating psychiatrist and a forensic psychiatrist, which defendant did not rebut with expert testimony. The award of $2 million for 15 years of future pain and suffering is, however, excessive, as compared to other cases involving similar injuries, including cases where, as here, the plaintiff is expected eventually to need a total knee replacement … However, none of those cases cites evidence of mental anguish and loss of enjoyment of life akin to the substantial trial evidence in this case. The reduction here is appropriate in light of plaintiff's age and the fact that her ability to travel and take photographs, while being adversely affected, has not been totally curtailed.”