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
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
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
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
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
"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. * *
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
Q. Okay. And –
A. Then you close the
Q. Right. Okay. So you're relocating the patella, is that
A. In essence, yes."
(Claimant's Exhibit 12, at
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
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
, 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.