New York State Court of Claims

New York State Court of Claims

SCUTT v. THE STATE OF NEW YORK, #2000-007-503, Claim No. 95390


Decision addressing damages for injuries sustained to, inter alia, left knee when claimant fell in a manhole. Injuries necessitated two surgical procedures. Claimant still experiencing problems and has 18 centimeter scar. Award: $200,000 for past pain and suffering; $75,000 for future pain and suffering.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

John L. Bell
Claimant's attorney:
Defendant's attorney:
Third-party defendant's attorney:

Signature date:
April 26, 2000

Official citation:

Appellate results:

See also (multicaptioned case)


On November 6, 1995, claimant stepped on a storm drain cover positioned over a manhole in a parking lot on the campus of the State University of New York at Plattsburgh (hereinafter SUNY Plattsburgh). The storm drain cover fell into the manhole as claimant stepped upon it, causing claimant to plunge into the manhole. Following a trial on the issue of liability, the court, in a decision dated June 9, 1999 and filed June 11, 1999, found defendant's negligence was the sole proximate cause of the accident. Damages are addressed herein.

Claimant is currently 22 years old, having been born on January 9, 1978. At the time of the accident, she was a 17-year-old first-semester freshman at SUNY Plattsburgh. The accident occurred at approximately 12:45 p.m. as she was walking to a class with her friend Chad O'Connor. She fell into the manhole to her armpits, striking her left knee "very hard"[1]
as she fell. She grabbed the ground attempting to hold herself up because her feet were not touching the bottom of the manhole. O'Connor pulled claimant out of the hole. She stated that her arms and hands were bloody. Her fingernails were "pretty much ripped off," with gravel imbedded under what remained of her nails. Claimant related that she felt "severe pain" in her left knee. She recalled being "mortified" as a crowd gathered to observe her. She also felt confused and in disbelief.
O'Connor carried claimant "piggy-back" style approximately one block to the college health center. She characterized herself as "hysterical" upon arrival at the health center. She recalled that the doctor at the health center cleaned blood from cuts and scratches on her hands and forearms. Claimant's left knee was swollen and discolored. Her left leg was placed in an immobilizer. She was given crutches and Tylenol with codeine. Claimant was instructed to use hot and cold packs on her knee. She left the college health center and was transported by taxi to Champlain Valley Physicians Hospital Medical Center (hereinafter CVPH) in Plattsburgh, where X rays were taken of her knee. Following the taking of X rays, an immobilizer was placed back on her leg and she returned to her college dormitory. Claimant stated that she did not return to classes for "at least a couple of weeks." She recalled that she was not able to go anywhere without assistance.

Claimant related that the pain and swelling in her knee did not improve and thus the doctor at the college health center sent her to see Dr. Stephane Mulligan at CVPH. She recalled making one visit to see Dr. Mulligan. Claimant stated that she kept the immobilizer on her leg until the beginning of Christmas vacation. She used crutches for approximately four weeks. She experienced pain and a popping sensation in her left knee. She stated that when she flexed her knee it would "pop out of joint and make a click." It was difficult to climb stairs and she would step up with only her right leg. Claimant continued using cold packs and took Ibuprofen for pain.

Claimant did not return to SUNY Plattsburgh following Christmas recess. She stayed with her parents at their home in Syracuse and began taking courses at Onondaga Community College. In January 1996, she sought treatment for her knee from Dr. Joseph Smith, an orthopedic surgeon in Syracuse. She related that Dr. Smith initially treated her with anti-inflammatory medicine. The conservative treatment did not, however, provide relief from the pain. On March 19, 1996, Dr. Smith performed arthroscopic surgery on claimant's left knee. Following the surgery, claimant went to physical therapy, where her workout included weight machines, stretching, bike riding, and hot and cold packs. Claimant related that her knee improved to a point where she could "do stairs in a normal way." Claimant stated, however, that the pain in her knee soon returned together with difficulty in bending and negotiating stairs. After several return visits to Dr. Smith regarding her knee, she decided to seek treatment from another physician.

In January 1997, claimant consulted with Dr. Carlo deRosa, an orthopedic surgeon, regarding the recurrent pain in her left knee. Dr. deRosa started claimant on another physical therapy program. Claimant continued, however, to experience pain in her left knee. She stated that it was painful to get out of a chair or to walk up stairs. Her left leg would get very stiff and painful when driving a car for more than a short duration. Claimant testified that she suffered from recurrent nightmares of falling. She related that she refused to walk on manhole covers or grates.

In October 1998, claimant started a job as a teaching assistant for pre-kindergarten students in the Syracuse City School District. Her job duties included interacting with the children and getting down to their eye level. She often experienced pain in her left knee and difficulty in carrying out the day-to-day activities of the job.

Claimant related that by early 1999 Dr. deRosa determined that further surgery was necessary. She was scheduled by Dr. deRosa for a reconstruction of the medial patellofemoral ligaments and possible proximal and distal realignment of the patellar mechanism. The operation occurred on July 2, 1999 at Crouse Hospital in Syracuse. Claimant was hospitalized approximately 24 hours. She stated that following the surgery she was in "a lot of pain" and, while initially on total bed rest, was eventually able to ambulate with crutches. She recalled using crutches until the end of August 1999. She has a scar on her left knee as a result of the surgery that is approximately 18 centimeters long.

Claimant stated that she continued to experience pain and problems with her knee following the surgery and that she is very self-conscious of the scar. She related that the children with whom she works often ask her about the scar. Claimant reported disposing of all her short skirts and not going to the beach since the surgery because she is embarrassed by the scar.

Claimant testified that at the time of the accident, she weighed about 125 to 130 pounds. Following the accident, her weight rose to approximately 200 pounds. She is unable to do activities she previously enjoyed, such as take long walks and running for exercise. When working with children, she is unable to kneel because of pain. She characterized her mental outlook as "bleak," and she often worries about further injury to her leg.

Cross-examination revealed that claimant successfully completed and graduated from Onondaga Community College in May 1999. She has not missed any work for medical reasons. Prior to her injury, her mid-term grades at SUNY Plattsburgh were very poor. She is not currently taking physical therapy, having stopped in October 1999. The report of a physical examination of claimant done on August 19, 1995, shortly before she entered SUNY Plattsburgh, reflected that she weighed 166 pounds at such time. On re-direct, claimant stated that she disagreed with the weight reflected in the August 19 report, that she lost weight in college before the accident and that she was weighed in her clothes at the physical.

Chad O'Connor testified that he was walking with claimant on November 6, 1995 when he suddenly heard a thump and then saw her in a manhole. After pulling her out, he observed that "she was blank, couldn't say anything, she was shaking." He looked into the manhole after pulling her out and estimated its depth at eight feet. He carried her to the health center and later accompanied her to CVPH. O'Connor, who dated claimant at the time and still dates her, observed that claimant was "dependent upon medicine" following the incident to alleviate pain. He indicated that before the accident, claimant was "easy-going and kind," but that she developed "like a meanness" after being injured.

Claimant's mother, Kathleen Scutt, testified that when claimant came home for Thanksgiving break in 1995 she was still on crutches. Mrs. Scutt recalled that, rather than getting together with her friends, claimant stayed primarily upstairs in her bedroom. She characterized her daughter before the accident as a "Miss Congeniality-type" who was involved in various activities and always spending time with her friends. She stated that claimant has now become like a "hermit," staying in her bedroom much of the time. Mrs. Scutt related that claimant is fearful and frequently cries.

Dr. Carlo deRosa, one of claimant's treating physicians, and Dr. Bruce E. Baker, who conducted an examination of claimant for defendant, both testified via videotaped deposition. Dr. deRosa first saw claimant in January 1997. He obtained a history, including Dr. Smith's arthroscopic surgery, which he described as plica resection and lateral release. Following the initial surgery, claimant did well for a couple of months and then began experiencing recurrent pain as well as a locking sensation in her left knee. Dr. deRosa diagnosed a subchondral sclerosis, which he described as an increased pressure between the patella and femur. Claimant also described to Dr. deRosa that her kneecap would go almost completely out of joint and then spontaneously return, resulting in a snapping sound. Claimant's symptomology increased as she reported difficulty with stairs, inability to walk any distance without pain and problems sitting in and getting out of chairs. Further surgery was thus recommended. Dr. deRosa described the surgery, which occurred in July 1999, as follows:

"A. What we first did was do an arthroscopic examination of her knee to see if there was -- you can see things through the scope which you can't see with the knee open as well. We can see spots with the arthroscope that you can't see even with the knee open. The arthroscopy was essentially unremarkable. The knee joint looked pretty good. There didn't appear to be any significant cartilage damage or things of that nature.

We proceeded with the surgery, we opened the knee through a median para patella incision, which means you go to the medial side of the patella from above to below down to the, on to the tibia, shin bone. And in the course of doing that we freed up the patellar tendons, soft tissues, and then we created a fracture in her tibia where the patellar tendon attaches and a little more further, a little further down the tibia, and you cut the bone on both sides, leave it attached here and then you create what is known as a greenstick fracture. You just let it break like kids have. The intent was to realign her patella tendon this way. * * *

Q. Right.

A. So you want to realign her patella from this side or the tendon, anyway, in this side. In so doing, you then realign the patella as well. After you fracture the bone and move it over, you hold it in place with a screw and a washer. After we completed that portion of the surgery, we went into the knee joint proper and reconstructed the ligaments that go * * * from this side of the femur to the medial side of the patella.

Q. Okay. And –

A. Then you close the knee.

Q. Right. Okay. So you're relocating the patella, is that it?

A. In essence, yes."

(Claimant's Exhibit 12, at 21-22.)

Dr. deRosa opined that the injury sustained by claimant on November 6, 1995 caused the condition that necessitated both of the surgeries. He stated that claimant's scar was permanent and that whether the screw would remain in her leg was an issue that could "go either way." He agreed that her current complaints regarding her knee are connected to the initial injury.

On cross-examination Dr. deRosa stated that claimant is not a candidate for further surgery, except possibly to remove the screw from her leg. He also related that based upon his examination of her following the surgery of July 1999, he "thought she was doing well and progressing well and satisfactorily" (Claimant's Exhibit 12, at 52).

Dr. Bruce E. Baker examined claimant on behalf of defendant on February 12, 1999 and December 10, 1999. After testifying about the nature of claimant's two surgical procedures, Dr. Baker explained some of the tests he conducted on claimant. He related that he asked claimant to squat and that she was able to "partially squat" (Defendant's Exhibit B, at 20). He conducted a range of motion test on her knees and found the range on her injured knee to be zero to 130 degrees, whereas her right knee was slightly better with a range of zero to 135 degrees. He did not observe swelling or effusion in either knee at the December 1999 examination. His examination of her knee ligaments revealed a normal finding as regards both knees. Dr. Baker explained that claimant had a valgus configuration of the knees, a condition referred to in layperson vernacular as "knock-knees." Such condition preexisted claimant's injury and, according to the doctor, made claimant more susceptible to kneecap instability. Claimant's reflexes tested within the normal range. Dr. Baker stated that the muscle development was virtually the same for each of claimant's legs.

On cross-examination, Dr. Baker acknowledged that it was "not unexpected" for claimant to have pain in her left knee based upon the type of injury she sustained. He further agreed that there is a "possibility" that she could develop arthritis in the kneecap region. He stated that the surgery performed by Dr. deRosa was "consistent" with the condition of claimant's left knee. When asked whether he believed claimant's pain would go away with the passage of time, the doctor stated that he could not comment regarding whether her symptoms would subside.

The court finds that as a result of falling into the manhole at SUNY Plattsburgh on November 6, 1995 claimant sustained several minor cuts on her hands and arms. More significantly, however, her left knee was injured during her tumble into the manhole. She experienced immediate pain and swelling. She was treated both at the college health center and a local hospital. Claimant's leg was immobilized and she used crutches for several weeks. She took both prescription and then non-prescription medicine for pain. By January 1996, she was able to resume some normal activities, including attending college. However, she continued to suffer pain and an inability to fully ambulate and thus she sought further medical treatment. She eventually had arthroscopic surgery performed on her left knee by Dr. Smith and thereafter participated in physical therapy. Although she received some relief following the surgery, her condition began to deteriorate again within a couple of months. In January 1997, claimant sought treatment from another orthopedic surgeon in the Syracuse area and by July 1999 she had her second surgery on her knee. Dr. deRosa's surgical procedure resulted in an 18 centimeter scar on claimant's leg. She attended further physical therapy after the second surgery. Claimant continues to experience problems with her knee and the reasonable prognosis indicates that she will continue to have some troubles. The fact that claimant had a preexisting condition (valgus configuration) that inhibits her recovery does not serve to reduce the damages (
see, e.g, Bartolone v Jeckovich, 103 AD2d 632, 635; King v State of New York, 58 AD2d 934, 935).
Claimant is able to work as a teaching assistant and has not missed time at her job because of injuries related to the accident. Since the accident, she has attained her Associate's degree and is pursuing a Bachelor's degree. Her indication that her weight gain and her apparent decline in congeniality are totally attributable to her injury was suspect.

After weighing and considering the evidence presented, the court awards claimant the amounts of $200,000.00 for past pain and suffering and $75,000.00 for future pain and suffering.

The Chief Clerk is directed to enter judgment in favor of claimant and against defendant in the amount of $275,000.00, together with interest at the legal rate from June 9, 1999.

April 26, 2000
Plattsburgh, New York

Judge of the Court of Claims

Unless otherwise indicated, all quotes herein are from the court's trial notes.