Rathbun v. Walker

¶1concurs in part and dissents in part in the following memorandum. Levine, J. (concurring in part and dissenting in part). I am unable to agree with the majority concerning the validity of the jury’s findings on damages. Unquestionably, plaintiff James Rathbun (hereinafter plain*718tiff) incurred painful and debilitating facial and head injuries as a result of the accident, including a fractured jaw, the loss of five teeth, a laceration of the lower lip and a deviated septum. He later developed an oral fistula and a nasal airway obstruction due to scarring within the sinus cavity. These were surgically repaired (along with the deviated septum) on two subsequent brief hospitalizations. Within six months of the accident, however, his physician removed any restrictions on his work activities and, apart from the loss of the five teeth, plaintiff had no permanent injuries and the jury was so charged. In the absence of proof of any significant impairment of plaintiff’s earning capacity or of permanent disability, I am of the view that a finding of total damages of $100,000 was clearly excessive (see, Senko v Fonda, 53 AD2d 638, 640; cf. Turner v Miller, 61 AD2d 856, 857). Accordingly, I would reverse so much of the judgment as awarded plaintiff $50,000 damages and order a new trial on damages only unless plaintiff stipulates to reduce the amount of the verdict in his favor to $25,000.