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This case is being heard in the First Department of the Supreme Court, the Appellate Division. The defendant and appellant in the case is the City of New York. The plaintiff and respondent in the case is Frank A. Durso. The case is being heard before Carro J.P., Fein, Bloom, Silverman, and Kassal JJ.
Case Background
On the sixth of September, in 1975, Frank Durso was driving his car when he stopped at a red light. As he was stopped he was hit in the rear by a New York City Sanitation Department vehicle. The impact of the truck pushed the Frank’s vehicle 10 to 20 feet into the intersection and caused so much damage that the vehicle was totaled.
At the scene of the accident Frank refused immediate medical attention. He instead went to his doctor’s office which was located nearby. He complained of excruciating pain. His doctor prescribed aspirin and bed rest. By the following Monday, the 12th of September, the pain was still bad so Frank went to Dr. Gallo, an orthopedist who had treated him for a back sprain that occurred in 1970.
Frank complained of pain that rant from his spine down to his buttocks. Dr. Gallo ran several tests and they showed a back condition that was not present in the past when these same tests were conducted. Frank was diagnosed with a herniated disc. After receiving care from Dr. Gallo, Frank returned to work within 7 weeks of the accident. He was placed on light duty at work and Frank needed assistance regularly. The pain continued and Dr. Gallo indicated that he might need surgery.
Frank continued to see the doctor and saw a bit of improvement in 1976. In 1977 the pain increased and was worse than it ever had been. By September of 1977 he could barely lift his leg. An incident described as critical occurred in 1978.
The incident involved Frank and around ten fellow employees and occurred on the 23rd of January, 1978. They were pushing a mail truck when Frank sustained another injury to his back. He was bedridden until March and then admitted to the hospital. He was put in traction for three weeks. The plaintiff was in serious pain and surgery was required.
The question in this case is whether the herniated disc was caused by the accident or from his pre-existing condition.
Case Discussion and Decision
The City is appealing the award of $700,000 to the plaintiff and $300,000 to the wife of the plaintiff on the basis that the amount is excessive.
We agree that this amount is excessive after reviewing the facts of the case. While the accident may have caused the herniated disc, the plaintiff refused initial medical treatment after the accident. Additionally, he continued to work for the next two years. He volunteered to push the mail cart on the night the fourth accident causing injury to his back occurred. This could be deemed as negligence.
For these reasons the court is reversing the previous judgment and setting aside the verdict. A new trial will be conducted on the basis of damages only.
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