After trial on the issue of liability, and by Decision filed January 16, 2001,
the State was held to be 100 percent responsible for physical injuries suffered
by Claimant Ervin Lashbrooks in November 1996 when the truck that he was driving
was struck from the rear by a Department of Correctional Services (DOCS) bus.
This decision follows the second trial, which was held to determine whether
Claimant sustained a "serious injury" or economic loss in excess of "basic
economic loss" (
Insurance Law §5104) and to assess the amount of any
Claimant testified that he was 53 years old at the time of the accident. After
graduating from high school, he worked as a meat cutter for approximately nine
years and then in area zinc and lead mines for almost eighteen years. The
physical energy required for the mine work was extensive, he stated, sometimes
requiring him to handle an eighty-pound drill for full days. He was injured
occasionally during this time. On three occasions he was hit by hanging rocks,
causing some problems with his neck. He was given some neck exercises to
perform and, on one occasion, was out of work for three months, but he suffered
no lasting effects. On another occasion he injured his thumb. Claimant stated
that his back also would bother him from time to time but not consistently or
During the summer of 1985, when the miners went on strike, Claimant worked in
construction, work that he found to be extremely difficult. He had suffered
substantial "lung loss" as a result of working in the mines and did not return
to that work after 1985. Instead, he went on partial disability, receiving
monthly benefit checks, and became self-employed, working on his own to build,
maintain and rent apartments.
At the time of his accident, Claimant owned seven apartments, two house
trailers, and three buildings. About five years before the accident, Claimant
had purchased a building in Pamelia, NY, that he intended to renovate and then
use for a carpet/appliance store. He stated that he paid about $15,000.00 for
the building, which was "literally worth nothing" (Transcript - p. 17) and that
by November 1996, when he was injured, he was about six months away from
completion, as the building lacked only the flooring and some wiring.
Claimant's normal routine prior to the 1996 injury was to perform maintenance
on his rental apartments in the mornings for several hours and then spend the
rest of the day on the building that was to house the carpet store. He
estimated that his work day was normally between eight and ten hours. The work
-- putting up walls and ceilings and Sheetrock, painting and laying carpet -- he
described as heavy. He did most of the work alone, carried his own materials
and building supplies, and engaged in a great deal of bending and stooping in
order to install electrical and plumbing.
When the accident occurred, Claimant's pickup truck was struck from the rear.
The back of the truck, onto which a wooden box was bolted, was pushed forward,
denting the cab and breaking the seat on which Claimant was sitting. He
remained belted into the seat, but the seat itself was ripped away from the
floorboard. The truck, for which he had paid $500.00 and put some money into
fixing it up, was totaled. Claimant was helped from the truck and taken by
ambulance to the emergency room of Samaritan Medical Center in Watertown, New
York. There he was x-rayed and, after several hours, told that he could leave.
He stated that as he rose from the table to go, he felt a "wicked sharp pain"
(Transcript - p. 30). Although, they wanted to keep him in the hospital after
that incident, he announced that he was leaving and did in fact leave.
The following day, Claimant went to Dr. Schwelnus, a chiropractor whom he had
seen many years before when he had been hit on the head. Chiropractic
treatment did not help and he then went to an orthopedic specialist, Dr. David
VanEenenaam. Dr. VanEenenaam referred Claimant to the CANI Spine Center where
he received physical therapy over the next several months, discontinuing in May
1997. The physical therapy provided marked improvement, but Claimant continued
to have problems and to see Dr. VanEenenaam, even after his no-fault benefits
ran out. He failed, however, to keep track of that expense. At that
physician's recommendation, he also consulted with a neurosurgeon. At trial,
Claimant testified that he continues to do the exercises recommended by the
physical therapists and the physician.
For about three months after the accident, Claimant did little other than stay
on his couch. After he began receiving physical therapy, he began what he
described as "light duty": painting, carrying out light garbage bags and the
like. For the first year after the accident, he was able to work two hours for
three or four days, but then had to take a day off to rest. As an example of
his present condition, Claimant stated that if he goes to Wal-Mart, he can just
barely make it around the store once. His right hip begins to bother him; then
both hips; and then his leg goes numb.
In caring for his properties, he began receiving help with the heavy work from
some of his tenants in lieu of rent. Eventually, the amount of work he could
perform leveled off at about two or three hours a day, but if he worked as much
as four hours, he would be unable to work the following day. He stated that he
can stand for only about fifteen or twenty minutes. His condition has not
changed since then, although he may have noted a slight improvement recently.
On the other hand, for four or five months prior to trial, he began to
experience a symptom he had not previously had: falling down after getting up
from a reclining position. In addition to the financial burden caused by his
inability to work, Claimant testified that he is upset at the change in his
life because "I enjoy doing work more than I do anything" (Transcript - p. 50).
Claimant also reported enjoying hunting and fishing in the past, activities
that he has been unable to engage in as frequently since he was injured. He
still hunts on occasion but does not go deep into the woods as he did before.
When he legally shot a deer during the most recent hunting season, his brother
had to transport it and cut it up for him. He could help only while sitting in
The deposition testimony of Dr. VanEenenaam (Exhibit 1) was introduced at
trial. He stated that he first saw Claimant on February 3,
for complaints of soreness in his back that the patient attributed to the
November 1996 accident. Claimant told him that the primary impact had been
from a wooden box that came through the back of the cab, breaking the seat in
which Claimant was belted. X-rays taken immediately revealed no fracture.
Despite seeking the services of a chiropractor in the meantime, his back
continued to bother him. Although he complained of some problems with his neck
and occasional numbness in his hands, the area of greatest soreness was his
lower back, a discomfort that was aggravated by activity and relieved somewhat
Most of the doctor's clinical findings at that time were within normal limits,
but he found slight limitation of neck motion and "pain at the extremes of both
flexion and extension, which I felt was limited to about 50 to 75 percent of
normal" (Exhibit 1, p. 9). Dr. VanEenenaam stated that the limitations in
movement were objective findings that he could confirm himself. His assessment
of the x-rays that had been taken immediately after the accident indicated some
mild degenerative disc disease of the lower cervical spine and in the
lumbosacral disc space in the lower back. His diagnosis was cervical and
lumbosacral sprain with underlying, but asymptomatic, disc disease. According
to Claimant's medical history, he had had no pain prior to the accident, either
from the disc disease or from a work injury several years in the past. At the
time of the initial examination, Dr. VanEenenaam prescribed an anti-inflammatory
medication and physical therapy for Claimant's neck and back, and he directed
Claimant to refrain from doing any heavy work or prolonged sitting, heavy
lifting, bending or stooping.
In late March, Claimant reported that his neck had improved and that the pain
in his lower back had possibly improved to some degree. He also reported that
stressful activity such as bending or lifting seemed to aggravate the pain. At
this visit, Claimant informed the doctor that he had been in the process of
building a building on which he was no longer able to work.
In May 1997, around the time that Claimant completed physical therapy, he saw
Dr. VanEenenaam again and reported that he had definitely benefitted from the
therapy. He still experienced some soreness in his lower back after working
four to six hours and still exhibited some limitation of motion. He was told
that he could gradually increase his activities but to continue to avoid
lifting, bending and stooping. In the physician's notes for March 27,
Dr. VanEenenaam indicated that he considered Claimant to have a permanent
partial disability, one that would continue to prevent him from doing work that
required heavy lifting or prolonged standing or walking.
Claimant was again seen by Dr. VanEenenaam in July and September 2000, and he
still had complaints of lower back pain. In addition, he had developed
pseudoclaudication, which the doctor described as "pain in your legs when you
walk" (Exhibit 1, p. 15). He stated this was possibly caused by pressure on
nerve roots. An MRI of the lumbosacral spine was obtained, which showed
degenerative disc disease from L2 to S1 and a cross section of the spinal canal
that was "borderline to mildly stenotic at levels 2-3 and 3-4" (Exhibit 1, p.
18). Stenosis is a narrowing of the canal through which the spinal cord or
nerve roots pass. He referred Claimant to a neurosurgeon at that time, in
hopes that neurosurgical treatment, possibly including surgery, might be of
help to him
During the three-year period in which Claimant was seen regularly by Dr.
VanEenenaam, his symptoms "certainly did not improve, in fact, became more of a
problem, which necessitated a referral" (Exhibit 1, p. 21). The physician's
conclusion is that Claimant had sustained a permanent limitation of the use of
his lower back, which he now considers to be a significant limitation. This
condition, he stated, was consistent with his history of gradually increasing
pain and lower extremity problems following the November 1996 injury.
On cross-examination, Dr. VanEenenaam acknowledged that he had only Claimant's
representations as to the condition of his back prior to the November 1996
accident. He also acknowledged that the reports he received from the CANI Spine
Center in May 1997 showed that Claimant himself estimated that he was "95
percent better" at the conclusion of the physical therapy regimen (Exhibit 1, p.
31). Other than the anti-inflammatory medication in February 1997 and a
prescription of Darvocet in February 1998, he prescribed no other medication for
Claimant. A lumbosacral sprain, he testified, would not normally be a
permanently disabling condition in a person of Claimant's age, but he stated
that it could have that result depending on "the patient's body habitus, their
age, any preexisting conditions that might be aggravated by a sprain that then
could kick in and be a perpetuating problem" (Exhibit 1, p. 36). In this
instance, he believed that Claimant had some preexisting conditions that were
made worse by the trauma of the accident and resulted in a permanent limitation.
Dr. John J. Cambareri, an orthopedic surgeon who conducted an independent
medical examination of Claimant on behalf of Defendant, testified at the trial.
He saw Claimant on July 13, 2001 for approximately twenty-five minutes. At that
time, Claimant was complaining of lower back pain going into both legs and
causing pins and needle feelings and numbness in both legs. He also noted some
radiating neck pain but stated that that was less severe than the back pain.
The doctor found no objective signs of spasms, found that neck motion was within
normal limits, and determined that the motion of the lower back was mildly
limited, to sixty degrees of flexion (normal being ninety degrees). Results of
leg raising tests were normal, and he had good movement in all other joints.
Dr. Cambareri found no evidence of motor atrophy or fasciculation. He also
reviewed the 1996 x-rays, which showed some diffuse bone spurs, and the MRI
taken in 1998, noting some mild building in L3-4, L4-5, and L5-S1. These
findings, he stated, were not consistent with traumatic injury to the lower
spine but, rather, were "perfectly consistent with a gentleman of stated age"
(Transcript - p. 98). He concluded, based on Claimant's history of subjective
complaints, that he may have suffered a cervical and lumbosacral sprain
(described as a tear of ligaments much like a twisted ankle) as a result of the
1996 accident but that this condition was, in his opinion, completely resolved
within six months when Claimant concluded physical therapy. Claimant's
continuing complaints of pain and limitation he attributed to degenerative disc
disease, which he felt would be entirely unrelated to any injury caused by the
accident. In addition, Dr. Cambareri found no evidence of continuing
disability with respect to Claimant's back condition, although on
cross-examination he explained that he did consider Claimant to have some
element of permanent impairment related to the disc disease.
The record of Claimant's physical therapy at CANI Spine Center (Exhibit A)
indicates that he was seen for a total of 15 visits. At the conclusion of
these, in May 1997, the therapist stated that Claimant reported no pain and that
his functional scores had reduced significantly. When asked about this on
cross-examination, Claimant stated that the pain they wanted to know about was
severe pain, not normal pain, and he compared the difference as talking about a
headache as opposed to a migraine headache. During his earliest visits to the
Spine Center, he reported shooting pains in his back when lifting and stated
that his legs would "go out" if he stood too long. The therapist's examination
found minimal loss of flexion and major loss of extension. In March 1997,
Claimant expressed to the therapist concern about his ability to return to the
work force, and in late April and May he reported hip or buttock pain after
working four to six hours.
Mike Bodah, who stated that he had known Claimant for thirteen years, became a
tenant of Claimant's some time after the accident. He testified that while
Claimant assisted him on working on some needed repairs to the apartment, his
efforts were very limited. It seemed to Bodah that Claimant is in pain much of
the time, being unable to stand on his feet for any length of time or to bend
over. Arnold Webb, another acquaintance, testified that he had known and worked
with Claimant both before and after the 1996 accident. Webb described Claimant
prior to the accident as being "in a little better shape" than he is now
(Transcript - p. 126). Now Claimant "hangs on his hips a little bit," has to go
down on his knees frequently, and cannot stay on his feet very long, often no
more than fifteen minutes.
When asked about the property that he owned at the time of the accident,
Claimant stated that one building, designated as Building A and intended to be
used for the storage of carpet, was eventually condemned and demolished after it
suffered extensive rain and wind damage. The adjacent building, designated
Building B, consisted of three apartments, two of which were completed prior to
the accident and one that he had been in the process of finishing when he began
work on the building that was to house the carpet/appliance store. This
building also sustained roof damage, which Claimant has been unable to repair
because of his physical condition. There was also apparently a third apartment
building in which five rental units had been completed prior to Claimant's
Claimant kept no income records with respect to any of these
When asked about his general finances, Claimant stated that he receives a
monthly disability payment as a result of his work-related lung impairment.
This was supplemented, prior to the accident, by the money that he took in for
rent and that income, for the most part, was invested in the building that was
to house the carpet/appliance store.
Claimant also offered the testimony of Steven Shrewsberry, an independent
builder and journeyman bricklayer. Defense counsel objected strongly, arguing
that the State had been given no notice of this witness or an opportunity to
consider his proffered testimony until less than two weeks before trial. A
ruling on that objection was reserved, but Shrewsberry was permitted to testify,
with Defendant being granted the opportunity to come back at a later date for
cross-examination and to present its own expert, if that was desired. There was
no subsequent resumption of the trial.
Shrewsberry testified that he worked as a general contractor on many wooden and
masonry structures, including apartment complexes and military installations.
He was not, however, licensed to perform estimates and is not a general
contractor. He received some training in estimating as part of his training for
the bricklayers union. He prepared the reports after being asked by
Claimant's counsel to estimate the cost of reconstruction and repair of two
buildings owned by Claimant (Exhibit 2 [Building A], and Exhibit 3 [Building
B]), as well as an estimate of the current cost if one were to construct the
building in which Claimant had hoped to open a carpet/appliance store (Exhibit
Building A had already been condemned when the estimate was prepared, and thus
that estimate was based only on Claimant's description of the structure and its
dimensions. Claimant had informed Shrewsberry that the building had sustained
roof damage after his accident and that, if he had been able to perform the work
himself, the needed repairs could have been made before the building
deteriorated to the point that it had to be demolished by town authorities.
Shrewsberry's estimate of the cost it would have required to rehabilitate that
building, from the condition it was in prior to the roof damage, was
The comparable cost to repair Building B, which Shrewsberry was able to
physically investigate, was estimated to be $78,639.00. This building he
described as a commercial building that had been turned over to residential use
at one time. None of the residences were occupied at the time of his
inspection. His instructions were to estimate the cost of getting the building
structurally sound, without particular reference to its intended use.
With respect to the building that was to house the proposed carpet/appliance
store, it had been purchased by Claimant for $15,000.00 and he performed
considerable work on it. The building lacked primarily only hardwood flooring
when it was viewed by Shrewsberry. He estimated that the cost to build a
building such as the one that he examined in December 2001 would be $320,348.00.
It should be noted that this evidence was not submitted as an item of damage
but, rather, as evidence that Claimant "could do work and do work well before
this accident" (Transcript - p. 151).
The State presented no witnesses on the issue of economic damages.
New York's no-fault law precludes recovery for non-economic loss arising out of
negligence in the use or operation of an automobile unless the injured party has
suffered a "serious injury" as defined by statute (Insurance Law §§
5102 [d], 5104). Counsel for Defendant does not dispute that Claimant's injuries
satisfy the "serious injury" threshold of this statute, and on the credible
evidence presented at trial, I am convinced that Claimant was "curtailed from
performing his usual activities to a great extent rather than some slight
curtailment" during at least 90 of the 180 days immediately following the
Licari v Elliott
, 57 NY2d 230, 236).
I cannot agree with Defendant's position that any award for non-economic
damages should be limited only to past pain and suffering. Certainly the most
acute pain resulting from this injury was experienced in the beginning months,
as indicated by Claimant's condition after the accident and his reported
improvement with physical therapy, medication, and rest. At the same time, it
is equally evident that there have been long-term effects of the accident, and I
am persuaded that Claimant's physical condition at the time of trial was
significantly more limited and uncomfortable than it would have if he had not
suffered this injury.
Defendant's expert does not dispute that Claimant suffers some limitation in
his back but attributes this to his unrelated and pre-existing degenerative disc
disease. The fact that Claimant was asymptomatic before the injury and has
never returned to that point since, as well as the recent pain and weakness he
has been experiencing in his legs, strongly suggests that the trauma he suffered
in the accident either caused continuing pain and/or aggravated his pre-existing
condition. Aggravation of a pre-existing condition is an element of damages,
and recovery may be had for that effect if such injury is specially pleaded and
Behan v Data Probe Intl.
, 213 AD2d 439). Here, Claimant's counsel put
the State on notice that recovery would be sought for "[c]ervical and
lumbosacral sprain superimposed on underlying but essentially asymptomatic
degenerative disc disease, spinalstenosis and degenerative arthritis secondary
to trauma" (Claimant's Supplemental Verified Bill of Particulars).
The work that Claimant performed prior to the accident in contrast with the
more limited amount of work he has been able to do since then, even after the
initial stage of recovery, satisfies the Court that Claimant suffers from some
long-term effect of the November 1996 injury. I find Claimant's testimony as to
his condition to be credible, and in particular his testimony that he is quite
unhappy that he is not able to work as much as he had in the past. This, and
the fact that in the past he only sought medical attention when
convinces me that he would be working at his former pace if he were able to do
so. Claimant's testimony and that of his colleagues is consistent with the
medical conclusions of Dr. VanEenenaam that the accident caused a permanent
limitation of the use of his lower back and that the progress of his previously
asymptomatic disc disease has been significantly accelerated.
Awards for pain and suffering must necessarily be based to a large degree on
subjective opinions "formulated without the guidance of precise and detailed
guidelines" and, consequently, consideration of the awards given in comparable
cases must be consulted to determine what is reasonable compensation (
Valentine v Lopez
, 283 AD2d 739, 743). Claimant in this action is not
actually "incapacitated" by his physical condition as much as he is continually
limited by it. He can still perform many of his work and leisure activities --
just not as frequently and not for so long a time. In addition, because his
chief pleasure came from work and active outdoor activity, he is now required to
spend more sedentary time, which he does not enjoy. A claimant's "inability to
enjoy life to its fullest" may be factored into the general award for
non-pecuniary damages (McDougald v Garber
, 73 NY2d 246, 255-56).
In consideration of these factors, the following award is made:
Past Pain and Suffering $ 55,500.00
Future Pain and Suffering $
(cf., Deyo v Laidlaw Transit
, 285 AD2d 853;
Wendell v Supermarkets General Corp.
, 189 AD2d 1063; Obara v State of
, Ct Cl, #2002-015-548 [Claim No. 99572], Jan. 10, 2002, Collins,
; Bogen v State of New York
, Ct Cl,
#2001-029-094 [Claim No. 92429], Aug. 23, 2001, Mignano,
In most cases, calculation of an injured party's economic damages is much less
subjective than determining reasonable compensation for non-economic losses.
In this action, however, it is more difficult. In fact, it is impossibly
Based on the finding that Claimant has suffered permanent physical limitation,
it stands to reason that his ability to perform the work of managing and
maintaining the rental apartments and renovation of the building planned for the
carpet/appliance store has been hindered. What is missing, however, is any
kind of concrete proof that realistically establishes the amount of income that
he has lost as a result. Specifically, there was no evidence of the income
Claimant derived from these activities prior to his injury or of what he is now
able to. "The basic rule is that loss of earnings must be established with
reasonable certainty, focusing, in part, on the plaintiff's earning capacity
both before and after the accident" (
Johnston v Colvin
, 145 AD2d 846, 848).
Claimant's counsel has carried out a truly excellent effort to use damage
assessment methods appropriate for determining another type of loss -- damage to
the property itself -- to quantify the value of, and therefore at least arguably
the income to be derived from, Claimant's work. Shrewsberry's testimony about
the cost to repair or the cost to construct the various buildings owned by
Claimant simply is not probative evidence of the amount of income that Claimant
lost or will lose as a result of his injury. As Claimant recognizes, the value
of work that he performed in renovating the building intended to house the
carpet/appliance store has not been lost. He still has an almost-renovated
building, which he may sell or lease or decide to use himself, thereby
benefitting from any increase in its value. In any event, the information
provided at trial does not give a workable measure of that increase, since it
compares the purchase price with a projected cost to construct. While there is
no reason to believe that this is true of Claimant's building, the stark fact is
that there are many structures in existence that would cost far more to build
than they can ever be sold for on the open market. Comparing Claimant's
testimony about the building's purchase price with the information contained in
Exhibit 4 about what it would cost to construct the building is, in a sense,
comparing apples to oranges.
The same is true for the cost to replace or renovate Building A, which was
ultimately condemned. Furthermore, even if Claimant was unable to carry out the
repairs or pay to have them performed, he had the alternative of selling it to
someone who could have made the needed repairs rather than let its value
diminish to nothing. Finally, while the Court credits testimony that at the
time of the accident Claimant had paying tenants in some of his rental
apartments, apparently primarily in Building B, and that after the accident he
was unable to continue to rent them or at least to receive rent payments, this
information does not produce any firm estimate of economic loss. There was
simply no testimony or other evidence to indicate how much income he received
from this activity in the past, so it would be impossible to judge the extent of
In short, while it is logical to assume that there has been a diminution of
Claimant's income as a result of his reduced ability to perform maintenance and
renovation work, there is no probative evidence from which the Court can
calculate the amount of that loss. Claimant must assume a significant portion
of the responsibility for this situation, as he apparently chose not to keep,
or at least share, any financial records that would have established his income
level prior to and after the accident. An injured party's loss of earnings or
other income "must be shown with reasonable certainty and not be speculative in
character" (36 NY Jur 2d Damages §68;
, Galaz v Sobel & Kraus
, 280 AD2d 427
[plaintiff's testimony regarding purported loss of future income from a proposed
business he intended to open or from his purported future employment as a
mechanic was too speculative to support an award]; Hughes v Nationwide Mut.
, 98 Misc 2d 667 [award for loss of profit cannot be made in the
absence of "specific and concrete proof" of such loss resulting from plaintiff's
inability to work]).
Where there has been no testimony or relevant documentation to establish the
amount of past earnings with "reasonable certainty," it is improper to make an
award for their loss, even when it is clear that the individual performed
compensated work during the period in question (
Papa v City of New York
, 194 AD2d 527, lv denied
918). In that case, an award of $140,000.00 for past lost earnings was vacated
because, although it was clear that the injured attorney had worked as a solo
practitioner during the years preceding the accident and had supported himself,
he failed to present any tax returns or other evidence to establish his income
during that period of time. An award of future damages was allowed, but only
because it was based on testimony of his former employer that the plaintiff
would have been rehired and documentation of the income he would have made if
that occurred (see also
, O'Connor v Rosenblatt
, 276 AD2d
610 [vacating award for past loss of earnings because it was not established by
In the instant case, there was simply no reliable evidence -- either
testimonial or documentary -- of Claimant's past loss of earnings. Furthermore,
the only evidence of any sort regarding anticipated future economic loss is
based on the assumption that the (unproven) past loss of earnings would
continue. An award for past and future lost earnings that is "entirely
speculative" cannot stand (
Razzaque v Krakow Taxi
, 238 AD2d 161, 162). Accordingly, no award for
loss of earnings will be made in this case. This is not a reflection upon
Claimant's attorney's efforts on behalf of his client. His advocacy on behalf
of Claimant and his dogged perseverance in what must be described as very
difficult circumstances, considering his client's inability to produce
documentary evidence of his purported economic loss, is to be commended. The
Court, however, is left with no other choice on this record than to limit
damages to past and future pain and suffering.
The Chief Clerk is directed to enter judgment in favor of Claimant in the
Past Pain and Suffering $ 55,500.00
Future Pain and Suffering $
TOTAL AWARD $124,000.00
with appropriate interest from the
date of the liability decision, December 29, 2000.
All motions not previously ruled upon are now denied.
LET JUDGMENT BE ENTERED ACCORDINGLY.