New York State Court of Claims

New York State Court of Claims

ENNIS v. THE STATE OF NEW YORK, #2002-019-029, Claim No. 101239


Court previously apportioned liability 50% to the State and 50% to Claimant based upon slip and fall on cracked and uneven walkway in a high volume rest stop area. Claimant, after apportionment, was awarded $17,500 for past pain and suffering and $32,500 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):

Claimant's attorney:
MALLILO & GROSSMAN, LLPBY: Jack Grossman, Esq., of counsel
Defendant's attorney:
BY: Joseph F. Romani, Assistant Attorney General,of counsel
Third-party defendant's attorney:

Signature date:
September 20, 2002

Official citation:

Appellate results:

See also (multicaptioned case)

On May 7, 1998, Claimant, Julia Ennis, then 53 years of age, fell and injured herself on a paved walkway at the New York State Department of Transportation safety parking area on State Route 17, westbound, between Exits 42 and 43, in Steuben County, New York. The trial of this matter was bifurcated, and this Court rendered a Decision on August 21, 2001 apportioning liability 50% to the Claimant and 50% to the State of New York (hereinafter "State") for the injuries sustained. (
Ennis v State of New York, Ct Cl, August 21, 2001, Lebous, J., Claim No. 101239 [UID No. 2001-019-015]).[1] A damages trial was held on May 14, 2002.
On May 7, 1998, the Claimant testified that while at the rest area on Route 17 westbound between Exits 42 and 43, she fell on a cracked, depressed, and uneven portion of a walkway at said rest area. In falling, Claimant hit her right knee and landed on her right arm and head, breaking her glasses. She described the fall as a heavy contact fall. In fact, she was so stunned she was unable to get up for approximately twenty minutes. She immediately felt knee, wrist, and head pain. Fortunately for Claimant she was traveling with friends who were able to help her get off the ground. Claimant testified that although she remained in extreme pain, they continued on their way to Canada, and upon arrival at their destination she visited a local hospital. There the hospital rendered an emergency room examination and referred Claimant for x-rays. Claimant testified that she remained in the hospital for only three hours, but was in pain throughout this entire period. She was diagnosed at that time with a stellate fracture of her patella, and a comminuted fracture of the right knee, non-displaced. She was discharged from the emergency room with instructions to keep the knee immobile, was given a knee immobilizer, crutches, and told to take over-the-counter pain medication for any aches and pains associated with her fall. Claimant testified that she remained with her friends in Canada for approximately one week during which time she was confined to bed keeping her right leg elevated. Pain in her knee, wrist, and head continued for the week, and Claimant testified that she took appropriate medications for the same. On return home to West Lawn, Pennsylvania, she was seen by her physician who referred Claimant to Orthopedic Associates of Reading, Ltd.

She was seen by Orthopedic Associates on May 14, 1998, where the stellate fracture of her patella and the comminuted fracture of her right knee was confirmed. She was told to continue wearing the immobilizer and return in four to six weeks for a follow-up x-ray and possible physical therapy. Five weeks post-fracture her medical records show that the fixation of her patella was still good, that she was full weight bearing at that time, and had excellent range of motion. At Claimant's request she was referred out for physical therapy. Claimant testified that she was seen by physical therapist Kevin Landa, who examined her, took a physical history, and started her on exercises consisting of various ball and weight exercises, stretching, and biking. Claimant states that this physical therapy routine remained constant throughout her thirteen visits for the same. Throughout this period Claimant testified that she continued to have constant pain in and around the right knee.

Claimant testified that she still has daily pain in and around the right knee, particularly while walking. Her right knee clicks under the kneecap, and she feels pressure on the knee. The pain she feels is sharp and it often radiates down her leg. Furthermore, her knee tends to give way when overworked.

Claimant testified that prior to this incident she was an avid walker. She walked daily in the morning for approximately forty-five minutes to an hour, and in the afternoon thirty to forty minutes. She also enjoyed skating, engaging in that activity approximately two times per month during the winter months. Claimant also enjoyed riding a bicycle every Sunday morning and enjoyed dancing with her husband with whom she was a member of a local dance club. In short, Claimant states that she was a physically active adult who enjoyed walking, biking, skating, and dancing, but due to her current physical restrictions has had to limit those activities. She still suffers from knee pain every day and the same has clearly limited her active schedule. In short, her life has changed from that of a very active person with a good quality of life, to a less mobile person who has had to forego or curtail some of the daily activities she truly enjoyed. Claimant was also on crutches for three months after this incident and testified that on occasion she still walks with a cane. Claimant denied any prior injury or damage to the right knee, and although she previously suffered from back problems there is no claim here that the same was in any way aggravated or associated with this injury. She continues to take Tylenol for pain as needed.

Claimant also called Kevin Landa, a licensed physical therapist in both California and Pennsylvania. Mr. Landa testified that he first saw Claimant on June 12, 1998, and took a history regarding the injury she sustained. At that time he noticed swelling to the injured area, some range of motion deficit, and some strength deficit to the right knee. The witness designed a therapy plan for Claimant to build endurance and muscle, and basically relied on stimulation and muscle exercises. Mr. Landa saw the Claimant for thirteen visits. He testified he last examined Claimant one week prior to this damages trial and still found a strength deficit and some loss of range of motion in the right leg, accompanied with weight bearing difficulty, and limited walking ability for any distances, although the Claimant had indicated that the swelling had subsided. He did notice the presence of joint noise in the right knee, as well as popping and clicking, and acknowledged that Claimant still complained of pain. Based upon the foregoing and the period of time that has transpired since the injury and physical therapy, Mr. Landa opined that Claimant's current condition could be described as clinically chronic and that her complaints will continue for the rest of her life.

The Court notes that Claimant did not require surgery relative to this injury, nor did she require hospitalization. While she had approximately thirteen visits to physical therapy, she did not require any more extensive or protracted treatment or medication. She no longer goes to physical therapy and does only home exercises. For the most part, the Court agrees with the State that the greatest changes in her health and condition seem to be impairment of her social activities - dancing, skating, swimming, bicycling, and walking for long distances. The Court believes Claimant's subjective complaints that her right knee continues to click and causes pain whenever she overexerts and that the same has limited those social activities that were previously very important to her. At trial no proof was offered as to any outstanding, unpaid medical bills, claim for lost wages, or a derivative claim. Moreover, other than Mr. Landa's belief that the Claimant's crepitus may be lasting, the Court agrees with the State that there is no medical evidence of any other type of permanent injury.

In light of the foregoing, the Court finds a full value award of $35,000.00 is warranted to compensate Claimant for her past pain and suffering. Furthermore, the Court finds that a full award of $65,000.00 is warranted to compensate Claimant for future pain and suffering for the crepitus being experienced by the Claimant which the Court finds to be permanent and which will continue for the balance of Claimant's life which the Court finds to be 26 years.[2]
However, since liability was apportioned equally between the parties, Claimant is entitled to recover $17,500.00 for past pain and suffering and $32,500.00 for future pain and suffering for a total award of $50,000.00.

Interest on this amount awarded at the rate of 9% will run from August 21, 2001, the date this Court found the State to be 50% liable for the Claimant's injuries.

Any and all motions on which the Court may have previously reserved or which were not previously determined, are hereby denied.


September 20, 2002
Binghamton, New York

Judge of the Court of Claims

[1]Unreported Decisions from the Court of Claims are available via the Internet at
[2] Claimant was born on November 29, 1944 and thus was 57 years old at the time of trial with a remaining life expectancy of 26.4 years. (1B PJI3d, Appendix A, p 1466).