with her grandchildren on the grounds of a hospital. The picnic was conducted in a courtyard playground area. Plaintiff fell when she caught her foot on a hole in a rubber mat which covered the playground. She suffered a chip (avulsion) fracture and dislocation of the elbow, with pain and limited range of motion. The elbow, a usually stable joint, her doctor explained, has to suffer a lot trauma to dislocate. Plaintiff had lost grip strength and had loose bodies (cartilage and bone) floating about her elbow, the latter of which promised a lifetime of pain. FWIW, ladies and gentlemen?
The jury awarded $300K past/$270K future pain and suffering, which was reduced post-trial to $140K/$60K. The 1st Dep't finds that reduction wrong, reinstating the jury's verdict. Cruz v. Bronx-Lebanon Hosp. Ctr., 2015 NY Slip Op 05601 (6/30/15).
As to the question of notice of the worn out mat, the court, without citation until now, offers this maxim: "A 'worn out' section by definition occurs over the passage of time," which "'presupposes a slow process, and can support a jury inference that the defect should have been discovered."