Rohring v. City of Niagara FallsRohring v. City of Niagara Falls
Lead Opinion
Thеse appeals raise issues concerning the application of CPLR article 50-B to an award of future damages after a jury trial on damages only, as well as issues concerning the cоnduct of the trial itself.
I
On November 20, 1986, Eric Rohring (plaintiff) was employed as an ironworker by third-party defendant, Falls Steel Erectors, Inc. (Falls Steel), on a project at a pumping station owned by defendant-third-party plaintiff, City of Niagara Falls (City). Plaintiff suffered a serious and debilitating heel injury when his safety belt split and he fell from a ladder. Plaintiff and his wife commenced this personal injury action in 1987 against the City, which thеreafter brought a third-party action against Falls Steel seeking indemnification and contribution. Plaintiff was granted summary judgment on March 9, 1989 against the City on the issue of liability, pursuant to Labor Law § 240. Thereafter, а trial was conducted on the issue of damages. On February 14, 1991, the jury determined that plaintiff had a life expectancy of 35 years and a work life expectancy of 25 years and awarded plаintiff a gross verdict of $2,501,311, which resulted in a structured judgment pursuant to CPLR article 50-B. Falls Steel and the City appeal from that judgment (appeal No. 1). The jury also awarded $20,000 on the wife’s derivative claim. A judgment fоr that amount plus interest was entered against the City, and a separate judgment was entered in favor of the City against Falls Steel on the City’s indemnification cause of action. Falls Steel also аppeals from those two judgments (appeals Nos. 2 and 3).
II
We reject the contention of Falls Steel and the City that a new trial should be ordered because the conduct of plaintiff’s attorney deprived them of a fair trial. A party’s right to a fair trial in a civil action may be defeated when the conduct of opposing counsel unfairly and prejudicially interjects extraneous аnd irrelevant issues (see, Giuamara v O’Donnell,
The primary issue at trial was the amount to be аwarded for plaintiffs future lost earnings. Plaintiffs expert testified that plaintiffs future lost earnings and fringe benefits totaled in excess of $3,600,000. The defense’s expert testified that plaintiffs future lost earnings and fringe benefits would amount to $1,678,000. The jury awarded future lost earnings in the amount of $1,600,000, a sum less than one half of the figure offered by plaintiffs proof. Thus, in spite of the many cited efforts on the part of plaintiffs counsel to attempt to manipulate the trial, it is apparent that the jury gave greater credence to the testimony of the defense’s expert in assessing the value of plaintiffs future lost earnings. Viewing the entire trial together with the verdict in totality, we conclude that the questionable conduct of plaintiffs attorney did not defeat the defense’s right to a fair and undistorted consideration of its proof.
Our attention has also been directed to the form of the verdict sheet. There is no merit to Falls Steel’s and the City’s contention that the court erred in refusing to include a question on the verdict shеet asking whether plaintiff had failed to mitigate past and future damages, and that this had the effect of precluding the jury from considering that issue. No authority has been submitted to support their position аnd our examination of the interrogatories and Comment in the New York Pattern Jury Instructions (see, PJI 2:325, and Comment at 1 NY PJI 692-696, and 1992 Supp, at 617-618) has disclosed no such requirement. Further, the court’s charge fully covered the issue оf mitigation, and the verdict sheet did not in any way preclude the jury from considering all of the relevant issues, including mitigation.
The challenge by Falls Steel and the City to the lack of foundation for the testimony оf plaintiffs expert with respect to future lost wages and future medical expenses was not raised at trial and is, therefore, not preserved for appeal.
Ill
Falls Steel and the City further cоntend that the court made several errors in applying CPLR article 50-B. In applying the statute, the court properly ordered lump-sum pay-
The court went awry, however, when it attempted to structure the periodic payments. To determine thе proper amounts of the periodic payments, the court had first to subtract those portions attributable to attorney’s fees, as they are to be paid up front. To make that calсulation, the court could have subtracted the present value of the attorney’s fees from the present value of the awards, or it could have subtracted the gross value of the attorney’s fees from the gross award of future damages; either method is correct but, unfortunately, mathematically cumbersome. What the court should not have done was to do what it did; it subtracted the presеnt value of the attorney’s fees from the gross value of the damages award, thereby inflating the value of the periodic payments. In recalculating the periodic payments, we reduce the present value of the amount attributable to each element of damages by the corresponding present value of attorney’s fees. The proper calculation yields initial yearly periodic payments of $6,146 for future medical expenses; $37,875 for future lost wages; $11,837 for future pain and suffering; $296 for future replacement cost of wood; and $1,183 for future replacement cost of household services.
Although the jury considered inflation in awarding future damages, the court properly ordered that the periodic payments be increased by 4% per year, as required by statute (see, Brown v State of New York,
IV
Finally, we reject Falls Steel’s contention thаt the third-party action should be dismissed. A final judgment does not bring up for review intermediate issues that have previously been reviewed and decided by this Court (see, CPLR 5501 [a] [1]; see also, Matter of Dora P.,
V
Accordingly, the judgment of Supreme Court in appeal No. 1 should be modified to the extent that the periodic payments due from the City are payable as set forth above. The judgments in appeals Nos. 2 and 3 should be affirmed.
Dissenting Opinion
We respectfully dissent from the part of the majority’s decision that approved the granting of interest on the awаrd of future damages.
On March 9, 1989, the court granted partial summary judgment to plaintiff on liability in this personal injury action and the matter proceeded to trial on the issue of damages. On February 14, 1991, the jury returned a verdict awarding
The court erroneously granted interest on the award for future damages from March 9, 1989. Interest is "the cost of having the use of another person’s money for a specified period [citation omitted]. It is intended to indemnify successful plaintiffs 'for the nonpayment of what is due to them’ ” (Love v State of New York,
Further, as indicated by the Court of Appeals in Milbrandt v Green Refractories Co. (
Green, J. P., and Lawton, J., concur with Boehm, J.; Pine, J., dissents in part in a separate opinion in which Boomer, J., concurs.
Judgment modified, on the law, and as modified, affirmed, without costs, in accordance with the opinion by Boehm, J.