Ayala v. Fortaleza, 628 N.Y.S.2d 289

Ayala v. Fortaleza

628 N.Y.S.2d 289 | N.Y. App. Div. | 1995

Judgment, Supreme Court, Bronx County (Alan Saks, J.), entered July 22, 1994, which, upon a jury’s verdict, awarded damages of $1,922,350 inclusive of $950,450, as reduced by order of the trial court, for future pain and suffering, plus pre-verdict interest and costs, unanimously modified, on the facts, to the extent of directing a new trial on the issue of future pain and suffering damages unless plaintiff stipulates to a reduction to $500,000, and otherwise affirmed, without costs.

Plaintiff, a bosun on defendant’s ship, was struck by sea spray in his left eye as he tightened lashings to secure cargo in rough seas. Plaintiff immediately reported the injury and was placed on restricted duty. Following three unsuccessful operations to reattach the retina, plaintiff commenced this suit under the Jones Act and the general maritime law of unseaworthiness.

The jury returned verdicts of liability under both causes of action and we reject defendants’ contentions that the charge as *204to proximate cause with respect to the separate causes of action was confusing or erroneous. The testimony of Dr. Orellana, a retinologist who performed all three operations within months of the injury, attributed the injury to the trauma immediately complained of by plaintiff and since it is the Chief Mate’s duty to ensure that all cargo is safely secured before setting sail, the jury finding of liability under the Jones Act as well as unseaworthiness for failing to provide a safe workplace is amply supported.

However, the award for future pain and suffering, even as reduced by the trial court to $950,450, deviates materially from what would be reasonable compensation (CPLR 5501 [c]). Plaintiff was 61 years old on the date of the injury and while he lost the sight in one eye, he will suffer no further physical pain. Accordingly, we deem an award of $500,000 for future pain and suffering to be reasonable compensation (compare, Crawford v Williams, 198 AD2d 48, lv denied 83 NY2d 751 [40-year-old man permanently blind in one eye in need of further surgery due to pain]; Davis v Board of Educ., 168 AD2d 261, lv denied 78 NY2d 862 [13-year-old suffered blindness in one eye]; LaPaglia v Sears Roebuck & Co., 143 AD2d 173 [nine-year-old, loss of eye, damages reduced to $800,000]).

Finally, the plaintiff is entitled to pre-verdict interest in this maritime case (Escobar v Seatrain Lines, 175 AD2d 741, 745-746). Concur—Sullivan, J. P., Rosenberger, Kupferman, Ross and Williams, JJ.