Hensley v. Lawrence

Cardona, P.J. (concurring in part and dissenting in part).

Inasmuch as I do not agree with that part of the majority decision concluding that the jury’s award with respect to the future pain and suffering of plaintiffs daughter, Maya, deviates from what would be reasonable compensation, I respectfully dissent as to that issue.

In my view, the jury’s award of $1 million for 10 years of future pain and suffering is reconcilable with recent cases, most particularly Young v Tops Mkts. (283 AD2d 923 [2001]), and, therefore, deserves deference. Notably, in Young, the adult male plaintiff suffered injuries to his right femur, spinal column, pelvis, right knee and right heel following a fall (id. at 924-925). Although there was evidence of the plaintiffs ongoing pain, the Fourth Department noted that a reduced award of $2.5 million for 25 years of future pain and suffering was appropriate given that the plaintiff could walk with a cane, drive and do light housework (id. at 925; see Allison v Erie County Indus. Dev. Agency, 35 AD3d 1159 [2006]).

Here, Maya, at the age of 13 years, sustained multiple traumatic injuries to the right side of her body, including a fracture of the superior and inferior pubic ramus of her pelvis, fracture of the eighth rib, a punctured and partially collapsed lung requiring insertion of a chest tube, a liver laceration, and a shifting of her bladder from the center to the left side of her body. As a result of this accident, a bone in Maya’s pelvis was twisted approximately 70 degrees out of position due to the tremendous amount of force caused by the subject collision. Significantly, there was medical proof at trial that the bony spike now protruding into Maya’s pelvis cannot be repaired surgically and will result in long-term pain and difficulties with, among other things, sexual activity, as well as any pregnancy or noncaesarean delivery of a child. While there was also proof downplaying the significance of those injuries, it is apparent from the amount awarded by the jury that it was convinced *1379Maya would experience substantial future problems and I find no reason in this record for that conclusion to not be accorded deference.

Thus, given the nature and extent of these unique and extraordinary gynecological injuries and their tremendous impact on this young woman’s life, it is my opinion that an award of $1 million for future pain and suffering is not excessive as a matter of law, is in line with the amount considered appropriate for a 25-year period in the Young case, and is not in conflict with cases such as Allison v Erie County Indus. Dev. Agency (supra) and Hopper v Regional Scaffolding & Hoisting Co., Inc. (21 AD3d 262 [2005], lv dismissed 6 NY3d 806 [2006]). Accordingly, I would affirm the jury’s award for future pain and suffering.

Ordered that the order and judgment are modified, on the facts, without costs, by reversing so much thereof as awarded plaintiff $2 million in damages for past pain and suffering and $1 million in damages for future pain and suffering; new trial ordered on the issue of said damages unless, within 20 days after service of a copy of the order herein, plaintiff stipulates to reduce the awards for past pain and suffering to $1 million and for future pain and suffering to $250,000, in which event said order and judgment, as so modified, are affirmed.