Kithcart v. MasonKithcart v. Mason
Plaintiff Eleanor Kithcart (hereinafter plaintiff) was driving
Supreme Court did not err in denying defendant‘s motion for judgment as a matter of law at the close of plaintiffs’ case and his motion to set aside the verdict. To establish entitlement to a judgment based upon insufficient evidence, there must be “no valid line of reasoning and permissible inferences which could possibly lead rational [people] to the conclusion reached by the jury on the basis of the evidence presented at trial” (Cohen v Hallmark Cards, 45 NY2d 493, 499 [1978]; see O‘Connor v Sleasman, 37 AD3d 954, 956 [2007], lv denied 9 NY3d 806 [2007]). Serious injury under the categories at issue here can only be established through medical proof containing “objective, quantitative evidence with respect to diminished range of motion or a qualitative assessment comparing plaintiff‘s present limitations to the normal function, purpose and use of the affected body organ, member, function or system” (John v Engel, 2 AD3d 1027, 1029 [2003]; see Toure v Avis Rent A Car Sys., 98 NY2d 345, 350 [2002]). Any demonstrated limitation must be significant, not minor, mild or slight (see Pugh v DeSantis, 37 AD3d 1026, 1029 [2007]; King v Johnston, 211 AD2d 907, 907 [1995]).
The quantitative standard here required objective proof of plaintiff‘s bulging cervical discs and a medical expert‘s quantifications of the limitations caused by that condition (see Pianka v Pereira, 24 AD3d 1084, 1086 [2005]). Plaintiff‘s neurologist, who treated her for the four years between her accident and the trial, testified that an X ray taken on the day of the accident depicted a cervical strain and narrowing of the disc spaces for two discs. A subsequent X ray indicated further degeneration and a large disc bulge. An MRI taken a year and a half after the
The verdict was not against the weight of the evidence. The standard is whether the evidence preponderated so in favor of defendant that the jury could not have reached its verdict on any fair interpretation of the evidence (see Black v City of Schenectady, 21 AD3d 661, 662 [2005]). Both plaintiffs’ and defendant‘s experts agreed that the accident caused plaintiff‘s cervical condition. While the defense expert opined that plaintiff‘s injury was not permanent and was due mainly to degenerative changes related to the aging process, we defer to the jury‘s evaluation of these conflicting medical opinions and its resolution of the associated credibility determination (see Apuzzo v Ferguson, 20 AD3d 647, 648 [2005]; Jones v Davis, 307 AD2d 494, 496 [2003], lv dismissed 1 NY3d 566 [2003]).
The jury‘s award of damages for future pain and suffering should be reduced. While a jury‘s assessment of damages is accorded deference, courts will disturb an award which deviates materially from what would be reasonable compensation for the injuries sustained, as determined by examining comparable cases (see Hensley v Lawrence, 40 AD3d 1375, 1376 [2007]; see also
Peters, J.P., Carpinello, Malone Jr. and Stein, JJ., concur.
Ordered that the judgment is modified, on the facts, without costs, by reversing so much thereof as awarded plaintiff Eleanor Kithcart $400,000 for future pain and suffering; new trial ordered on the issue of said damages unless, within 20 days after service of a copy of the order herein, plaintiffs stipulate to reduce the award for future pain and suffering to $300,000, in which event said judgment, as so modified, is affirmed.