Trial Judge Erred in Failing to Tell Jury to Consider Bus Accident Short Stop Victim's Claim of Fracture under No-Fault Law

Case: Oliver v. N.Y.C. Transit Authority

Court: Supreme Court, Appellate Division, Second Department, New York

Date: 6/27/12

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn and Queens; Queens injury attorney)

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RELATED POSTS:

ACCIDENT VICTIM BEATS BUS CO. SUMMARY JUDGMENT MOTION ON: (1) SHORT STOP, AND, (2) NEW YORK NO-FAULT "SERIOUS INJURY" THRESHOLD

PLAINTIFF HURT IN FALL ON SHORT-STOPPING BUS; DEFENSE MOTION FOR SUMMARY JUDGMENT ON LIABILITY DENIED

BUS PASSENGER'S "SUDDEN STOP" ACCIDENT CASE DISMISSED

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Facts: Accident victim was a bus passenger in September, 2000, when -- she claims -- the bus stopped short and threw her backwards. This case went to a jury trial where, on the issue of liability, the jury found the parties 50-50 at fault.

This appeal rises out of the jury's damages verdict that plaintiff did not suffer "serious injury" within the meaning of New York's No-Fault law, so that she ended up with zero.

Plaintiff had a significant prior medical history of arthritis and two prior knee replacements and one hip replacement. Shortly after the accident, her doctor found a broken pelvis (hip). She underwent several surgeries to fix her hip, as well as back (lumbar) surgery.

This case turns on a technical issue.

When the trial judge instructed the jury on the No-Fault "serious injury," no instruction to the jury was made of the "serious injury" category of "fracture." This accident victim's lawyers claim that this was an error.

Held: Since the plaintiff gave evidence of her fracture at trial, the charge to the jury should have included the "fracture" category of "serious injury" so it was wrong and the trial judge goofed.

The accident victim gets a new damages trial, where all categories of the No-Fault "serious injury" will be available to her, provided she presents evidence on whatever parts of that law that she intends to claim apply.

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