$500Gs for loss of sense of smell in fall down Elevator Shaft

Appellate Court Reverses Trial Court in Elevator Accident

Appellate Division reverses erroneous jury verdict and orders a new trial.

Our clients often ask us, What is my case worth? It is a question whose answer is not always clear.

In the early nineties, a young woman named Dara hired John Bosco of Bosco, Bisignano & Mascolo, Esqs. LLP to handle her case. She was the passenger in a car driven by her boyfriend. Late one night, her boyfriend lost control of the car and struck a guide rail. Our client fractured her ankle. It was diagnosed on the day of the accident and appeared in the hospital record. The insurance company for the boyfriend refused to pay her fair and adequate compensation so John Bosco started a lawsuit.

There are a number of elements that together consitute a 'prima facie' case. In a motor vehicle lawsuit, there are 4 elements:

1. Negligence
2. Injuries
3. Causation
4. Rising to the level of seriousness

A plaintiff has the burden of proving all of the elements not just some of a prima facie case. In a lawsuit arising from an automobile accident, one of the elements of a case that a plaintiff must prove is that the injuries rise to the level of serious. A serious injury is defined under New York State law to be death, dismemberment, significant disfigurement, fracture, loss of a fetus, a permanent injury, a significant injury or being disabled for at least 90 out of the first 180 days after an accident. A defendant can be negligent, a plaintiff can be injured and there can be causation between the negligence and the injuries yet, if there is no serious injury, the plaintiff loses. In other words, a plaintiff must bat 4 or 4. Negligence, causation, injury and serious injury all must be proven. If a plaintiff fails to prove any one of these elements, a plaintiff loses. All a defendant need do is bat 1 for 4 to win. If a defendant knocks out one of the four elements that constitute an auto accident case, the defendant wins.

Getting back to the story.

John Bosco tried Dara's case twice. The first time the jury came back with a verdict of no serious injury. Even though the fracture was in the hospital record and a fracture is a serious injury as a matter of law, the jury told Dara that she lost. Of course, John Bosco was not satisfied with the outcome so he appealed. On appeal, John Bosco managed to persuade the appellate court that the verdict was erroneous and the appellate court reversed the verdict and ordered a new trial.

At the new trial, the insurance company again did not want to settle the case. John Bosco tried the case for a second time. This time the jury returned a verdict of a quarter of a million dollars!

So what is a case worth? One jury thought it was worth zero and another $250,000.00. Is there any wonder that it is hard to tell what a case is worth?

The opinion of the Appellate Division Second Department is attached below.