On Oct. 17, 2002, plaintiff Janie Utsey, 77, exited a commuter bus and walked to a crosswalk at the intersection of Westchester and Morrison avenues, in the Bronx. While crossing the street, she stepped out of the crosswalk to avoid another pedestrian but caught her foot in a pothole that was next to the crosswalk. She sustained an injury of a hip.
Utsey sued the city of New York. She alleged that the city was negligent in its maintenance of the intersection and that its negligence created a dangerous condition.
Utsey’s counsel claimed that the city’s department of transportation improperly repaired the pothole some 17 months earlier. He contended that the hole was caused by the department’s failure to seal and fill in the gap with asphaltic cement compound, the proper repair material used for that purpose.
After the conclusion of Utsey’s case, defense counsel moved for dismissal. He argued that Utsey failed to establish that the alleged defect was created upon immediate completion of the department of transportation’s work, as required by recent appellate decisions. The motion was denied.
Defense counsel contended that the gap was created by wear and tear from weather and traffic over 17 months and was not the result of negligent repair work by the department of transportation. He also claimed that the condition was open and obvious and that Utsey was negligent for failing to see and avoid the pothole.
Defense counsel acknowledged that the department of transportation failed to use the cement compound, but he also maintained that it was not required to do so because the pothole was connected to the cement platform of a bus stop.
A city witness who performed the repair also acknowledged that he did not use asphaltic compound to seal potholes on cement. He claimed that the pothole was adjacent to a bus stop in a busy intersection and that using the compound would not only take too much time, it would also have stuck to the shoes of bus passengers boarding and disembarking the bus.
Defense counsel attacked Utsey’s credibility by focusing on statements she made that at the time of her 50-h hearing, usually conducted prior to the filing of a lawsuit against the city. At the hearing, she testified that she was carrying only a purse, but her hospital records indicated that she also carried a cane, which had gotten stuck. Her statements to hospital personnel and to her surgeon made no mention of the roadway, bringing into question where the accident had occurred, defense counsel argued.
Utsey sustained a fracture of her right hip’s femur. The fracture was addressed via open reduction and internal fixation, and she subsequently underwent physical therapy. About seven years later, she underwent replacement of her right hip.
Utsey’s expert orthopedist opined that the fracture and the subsequent hip replacement were causally related to the accident. The hip-replacement surgery, the expert said, was related to an over-reliance on the left leg as a result of the fracture.
Utsey contended that she required daily care from a home care aide, at the cost of $120 per day, and a nurse who provided care once per week, at a $160 daily rate.
Utsey sought recovery of her past and future medical expenses and damages for her past and future pain and suffering.
The jury answered a special interrogatory in the verdict sheet, finding that the city had created a dangerous and hazardous condition immediately upon completing its work 17 months earlier and that the dangerous condition was a substantial cause of Utsey’s injuries. The jury also found that Utsey was not responsible for her injuries. The jury determined that Utsey’s damages totaled $3.8 million.
Janie Utsey
$500,000 Personal Injury: Past Medical Cost
$800,000 Personal Injury: FutureLostEarningsCapability
$1,000,000 Personal Injury: Past Pain And Suffering
$1,500,000 Personal Injury: Future Pain And Suffering
Defense counsel has expressed an intention to move to set aside the verdict. He has indicated that an appeal is a possibility.