Cases from Decisions Filed February 5, 2021 – Fourth Department
Evidence that City Affirmatively Created a Dangerous “Pavement Cutout” in Street Results in Reinstatement of Injured Bicyclist’s Lawsuit, Despite Showing that the City Lacked “Prior Written Notice” of the Defect
In the matter of Horst v. City of Syracuse, NY Slip Op 01591 (4th Dept., February 5, 2021), a bicyclist sued the City of Syracuse for injuries he sustained when he was thrown from his bike after riding into a pavement cutout in a city street, which was at the time concealed by a puddle.
The defendant, City of Syracuse, moved for summary judgment in the Onondaga County Supreme Court, arguing that it could not be held liable for the plaintiff’s incident, because it lacked “prior written notice” of the defective and unsafe condition of the road.
Under New York Law, when a plaintiff sues a municipality claiming that the municipality negligently created a dangerous condition and that municipality has enacted a “prior written notice” law, then the plaintiff must demonstrate that the municipality received prior written notice of the alleged dangerous or unsafe condition complained of. Failure to do so will result in dismissal of a plaintiff’s lawsuit, as “prior written notice” is a “condition precedent to suit.” There are, however, some exceptions to this rule: the rule, for instance, does not apply where there is evidence that the municipality “affirmatively created the defect.”
In this case, the Supreme Court found that the City of Syracuse lacked prior written notice of the dangerous condition of the road and dismissed the lawsuit. The plaintiff, however, appealed the decision arguing that the City did, in fact, receive prior written notice and that, even if it did not, there was sufficient evidence showing that the City “affirmatively created” the dangerous condition so as to allow a jury to consider the issue.
On appeal, the Fourth Department ultimately agreed with the City’s argument that it was never provided with prior written notice of the unsafe condition of the road. Nonetheless, the Court went on to find that the plaintiff produced sufficient evidence showing that the City did, in fact, affirmatively create the unsafe cutout in the pavement. Specifically, the Court noted that plaintiff submitted deposition testimony of the City’s public works superintendent, who testified that the City was solely responsible for repairing potholes and that the City, in fact hired a contractor to perform curb work in the area where the incident occurred. He also testified that the pavement cutout was not a pothole, but a hole “deliberately created” as part of the curb work being done on the City’s behalf. Therefore, the Court was persuaded that the plaintiff produce enough evidence to have this matter go before a jury on the issue of whether the City, despite not receiving prior notice, affirmatively created the unsafe road condition that caused plaintiff’s accident. As such, the Court reversed the decision of the Supreme Court and reinstated plaintiff’s complaint.
Appellate Court Upholds $700,000 Verdict against Town of Amherst
In the Matter of Grasha v. Town of Amherst, et al., NY Slip OP 00829 (4th Dept., February 5, 2021), the plaintiff sued the Town of Amherst for injures she sustained in a car accident. As a result of the accident, plaintiff suffered from neck pain, chronic headaches, and shoulder pain. In the seven years between the accident and trial, plaintiff underwent various forms of treatment, including chiropractic care, massages, Botox treatments, acupuncture, and shoulder surgery, to reduce her symptoms and regain her pre-accident level of activity.
At trial, the jury found in favor of the plaintiff and awarded her $115,000 for past pain and suffering and $600,000 for future pain and suffering.
The Town of Amherst appealed the verdict, claiming, among other things, that the verdict for past and future pain and suffering was excessive.
In New York, when assessing whether a jury verdict is excessive, courts will consider whether the verdict “deviated materially for what is considered reasonable compensation.” In the context of pain and suffering, however, monetary awards are not “subject to precise quantification;” Thus, courts look to comparable cases to determine at which point an award deviates from what is considered reasonable compensation.
In this case, the Appellate Court, after looking to comparable cases, found that neither the $115,000 award for past pain and suffering nor the $600,000 award for future pain deviated “materially from reasonable compensation.” In reaching that decision, the court pointed to the fact that the plaintiff was 33 years old at the time of the accident and had a project future life expectancy 42 years. The Court also noted that the evidence at trial established that, as a result of the accident, plaintiff sustained soft tissue injuries to her neck and shoulder and had suffered daily headaches, chronic neck pain, weakness and numbness in her left arm, and decreased sensation in her left hand. Lastly, the court also pointed out that plaintiff’s shoulder required surgical repair, that her head and neck pain persisted, and that she would need continued medical care in the future. Therefore, the Court upheld the jury verdict, finding that it did not deviate materially from reasonable compensation.
Prepared by Dominick F. Roa