Home » Blog » Damages » $100k Award for Child’s Ankle Fracture Deviated Materially From Reasonable Compensation; New Trial Ordered Unless Defendant Agrees to Pay $300k

$100k Award for Child’s Ankle Fracture Deviated Materially From Reasonable Compensation; New Trial Ordered Unless Defendant Agrees to Pay $300k

by mjpospis on April 16, 2017

in Damages, Personal Injury

In Sawh v. Bally Contracting Corp., No. 16789/10, 2017 WL 902330 (N.Y. App. Div. 2d Dept. Mar. 8, 2017), the court granted plaintiff’s motion under CPLR 4404(a) to set aside a $100,000 jury verdict on the issue of damages for past pain and suffering, which in the court’s view were too low.

From the Decision & Order:

On October 3, 2009, Rejandra Sawh (hereinafter the child), the plaintiff’s then–12–year–old son, sustained a bimalleolar right ankle fracture, consisting of severe fractures of his right fibula and right tibia, as well as a fracture in his right tibia which damaged the epiphyseal or “growth” plate. The child’s injuries required three surgeries, including the implantation and later removal of screws. The child’s first hospitalization lasted five days, and he missed two months of school. After the two surgeries during his first hospitalization, he was required to use a splint for two weeks and then a boot with crutches for six weeks. In 2011, the third surgery was performed wherein the screws were removed and the child was required to use crutches for three weeks. After the three surgeries, the child developed increasing pain with certain movements of his ankle caused by the fusion of his right tibia and right fibula and a tibial angular deformity due to the damage to his growth plate. A fourth surgery to correct these deformities will be required. The child testified at trial that he needed to wear a brace when running, could no longer run as fast or as far as he used to, feels pain when he stands for too long, has trouble walking for long distances, and has less ability when participating in sports or during gym. The child also testified that changes in weather cause his ankle to tighten and it makes it more difficult for him to walk. The child has permanent reduced range of motion of his right ankle, cannot jump on his ankle, and feels a “pins and needles” sensation in his right heel.

Under the circumstances of this case, the damages awarded to the plaintiff for the child’s past pain and suffering deviated materially from what would be reasonable compensation to the extent indicated herein.

The court therefore reversed the lower court’s denial of plaintiff’s CPLR 4404(a), and remitted the matter to the Supreme Court, Queens County or a new trial on the issue of damages unless defendants agree to increase the amount of damages from $100,000 to $300,000.

Categories: Damages, Personal Injury

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