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$________ City defendant found 85% liable and plaintiff 15% liable when plaintiff stepped into depression in asphalt around a manhole cover - Partial tears of anterior and posterior talofibular ligament - Surgery revealed torn ligaments and damage to distal articular surface of tibia - Evans Procedure required in future to harvest tendons for insertion into ankle.

Kings County

On July 14, ________, the plaintiff, a male in his early 20s who was employed as a security guard for an armored truck company, fell while crossing Borinquen Place in Brooklyn. The plaintiff alleged that he had stepped into a deep depression in the asphalt surrounding a New York City sewer department manhole cover. He sued the City of New York and alleged that the City was negligent in that: (1) it had violated ’ 19-________(d) of the Administrative Code which requires the City to maintain the surrounding grade flush with the manhole cover; and (2) it had not properly paved the street initially in that the asphalt was not properly compacted which caused it to collapse around the hardware.

The defendant City contended that the plaintiff did not fall where he alleged, but instead, had tripped on a sewer grating across the street, and maintained that the plaintiff was comparatively negligent for failing to avoid the dangerous condition. The plaintiff’s cousin testified that he had just left the plaintiff at the curb and was walking in the direction opposite the plaintiff when he heard the plaintiff scream, turned around, and saw the plaintiff lying on the manhole cover. However, hospital records were introduced which indicated that the plaintiff said he had fallen on a sewer grating.

The plaintiff’s expert engineer testified that in order to properly pave a street, the underbelly of the asphalt had to be sufficiently compacted so that the street would not collapse from the weight of road traffic. He opined that the City was under a continuing obligation to maintain the grade flush with the hardware in accordance with the express provisions of the Administrative Code. The City offered no witness on the issue of liability.

At the St. Johns Medical Center emergency room, the plaintiff was originally diagnosed as suffering an ungraded ankle sprain. He was placed in a hard cast which he wore for six weeks. Eight years later he was diagnosed with partial tears of the anterior and posterior talofibular ligament and underwent arthroscopic surgery which revealed torn ligaments and damage to the distal articular surface of the tibia.

His surgeon testified that these injuries were causally related to the accident and that in the future the plaintiff would be required to undergo an Evans Procedure in which the peroneal tendons in the leg would be harvested and inserted into the ankle to give it additional support. The plaintiff introduced an MRI taken in November of ________ which showed the torn ligaments. On behalf of the defendant, the examining orthopedist opined that the plaintiff had suffered a sprain which healed and that the plaintiff’s current condition and tears of the ligament were unrelated to the accident.

The plaintiff had demanded $________. The jury returned a verdict finding the defendant 85% negligent and the plaintiff 15% comparatively negligent. It awarded the plaintiff $________, of which $________ was for past pain and suffering, $________ was for past medical expenses, $________ was for lost earnings, and $________ was for future medical expenses.

The plaintiff has moved to set aside the jury award on the grounds that it is internally inconsistent and deviates materially from what would be considered reasonable compensation.

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