Damages trial granting award for pain, suffering, and lost wages after summary judgment finding State liable for injuries Claimant sustained when he was attacked by a rabid fox.
|Claimant(s):||RANDY AGNESS and ANNETTE AGNESS|
|Claimant short name:||AGNESS|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||DIANE L. FITZPATRICK|
|Claimant's attorney:||LoTEMPIO LAW GROUP
By: Brian D. Knauth, Esquire
|Defendant's attorney:||LETITIA JAMES
Attorney General of the State of New York
By: Kevin A. Grossman, Esquire
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||September 11, 2019|
|See also (multicaptioned case)|
Claimant(1) filed a claim seeking damages for injuries he sustained from a rabid fox attack
while a patron camper at Sampson State Park in Romulus, New York. The liability of the State
for this incident was determined by summary judgment motion finding the State 100 percent liable. The State appealed the motion Decision and Order and the Appellate Department, Fourth Department affirmed.(2) A damages trial was held in the Syracuse District on February 14, 2019.
All of the underlying facts are set forth in the summary judgment Decision and Order. The important facts for purposes of determining damages will be set forth here.
On Thursday, June 21, 2013, Claimant and his wife(3) planned a camping trip to Sampson State Park. Claimant, who was 51 years old,(4) arrived that day, and his wife planned to arrive Saturday morning. After setting up the campsite, Claimant went shopping, returning to the park about 4:00 p.m. After dinner, he was sitting near the fire pit and dozed off.
Claimant awoke to a fox biting down on his nose. Claimant jumped up and pulled it off his face and threw it to the ground. The fox jumped up and bit his dominant left hand. Claimant was yelling and swinging his arm trying to get the fox to release its grip. After throwing the fox off his hand, Claimant testified that the animal kept attacking him, biting and clawing as Claimant tried to prevent it from reaching his face. At one point, the fox knocked Claimant to the ground causing him to twist both his ankles. He feared for his life if he could not stand up. He was screaming for help but no one came to assist him.
Even after Claimant arose to his feet, the fox continued to jump, claw, and bite at him. Claimant estimated the attack continued for 10 - 15 minutes. His hand was bleeding and he could feel blood running down his face. At one point, he grabbed the fox's neck and tried to throw it in the fire. Finally, Claimant had the opportunity to kick the fox across the campsite and it ran off.
Claimant then got some napkins from his supplies to stop the bleeding and he walked to the park office. He said he had never felt such pain, he described his face as being "on fire with pain."(5) A park attendant got the park manager who moved Claimant from the lobby area to a conference room. Claimant waited for medical help. While waiting, Claimant overheard a conversation among the park employees about an earlier fox attack at the tennis courts, near Claimant's campsite.
Before Claimant left by ambulance, a park officer interviewed Claimant about the incident. After the fox was found and killed, it was tested and found to be rabid.(6)
Claimant was taken to Geneva General Hospital (Geneva) where a team of medical providers started working on him in the Emergency Room. No pain medications were provided in the ambulance; Claimant testified his entire body was in horrible pain and his left hand was swollen. He rated his pain as a 10 out of 10. Cleaning the wounds was almost as painful as the attack itself. Photographs were taken at Geneva(7) which show the extent of Claimant's injuries; long, jagged tears in Claimant's nose resulting from Claimant's attempt to pull the fox off of his face and the fox maintaining a firm hold on his nose.(8) One of Claimant's ankles was X-rayed, and there were no fractures. The photographs of Claimant's left hand depicts a deep bite mark between his thumb and forefinger and scratches on his hand and wrist.(9) One of the facial bites just missed his left eye. The injuries on his nose swelled and made it difficult for Claimant to breathe. This difficulty continued for months, according to Claimant. The damage to Claimant's nose was too severe for Geneva to treat, so he was transferred to Strong Memorial Hospital (Strong) in Rochester to be evaluated by a microfacial surgeon who was on duty. Claimant was given pain medication and a sedative for the trip between hospitals which put him to sleep. Although the question of the fox's health had not been determined, Claimant received eight-to-nine rabies vaccinations at Geneva as authorized by the Seneca County Health Department. They were administered in his arms, legs, buttocks, and near the bites on his face. When Claimant arrived at Strong, the medical providers determined the extent of the damage to his nose, mostly on the right side. A flashlight was shone into the nasal passages, and the light could be seen through the bite marks. The medical providers gave him six-to-eight injections of novocaine in his face and then gave him additional rabies injections in his nose. The rabies protocol required the injections to be given as close to the bite area as possible. He estimated he had eight-to-nine additional injections. Claimant has little recollection of the surgery. Claimant's wife picked him up from the hospital about 5:00 a.m. the morning after the attack. With all of his facial sutures, she thought he looked like Frankenstein.
The manager of Sampson State Park later called Claimant to advise he would not be charged extra if he could not clear the campsite immediately. He also told Claimant he should be more aware of the potential for such situations in the park. Claimant and his wife cleared the campsite the following day, although, Claimant could only use one hand to assist.
In June 2013, Claimant was employed by Jasco Tools in Rochester. Claimant was both the quality manager and compliance manager for two plants. One plant was a tool and die shop and the other was a metal heat treating plant. He testified he was responsible for the quality of products and for quality audits. Claimant was a salaried employee with an hourly salary of $27.92.(10) Claimant's benefits included healthcare, vacation, a 401K with Jasco matching up to six percent of Claimant's contributions, and performance bonuses. Claimant had worked there about nine years at that time. After the attack, Claimant requested and was given a few days off from work. He attempted to return for half-days but he could not hold anything or use the computer. Claimant lost his job at Jasco on September 6, 2013. Claimant testified that he was told it was due to his continuing medical issues that affected his ability to do his job. He also said Jasco was downsizing. He found another job on October 14, 2013. Claimant is seeking $5,584 in lost wages. He lost 152 hours of vacation time and is seeking $4,243.84 plus the cost of health insurance while he was unemployed which totaled $2,500. Claimant went 14 months without his employer's matching funds being added to his 401K which he valued at $3,040.
Claimant submitted photographs of his face taken on September 11, 2014, more than a year after the incident.(11) The bridge and tip of his nose were still swollen and red as was the bite mark under his left eye. The inflammation inside his nose had not subsided and he still had difficulty breathing. Claimant also testified that due to the visible injuries, people often asked what happened, and retelling about the attack caused him anxiety. He has not gone camping since the incident.
After the initial injections to prevent rabies, Claimant had to receive additional rabies injections at Geneva. The Seneca County Health Department contacted him to verify he was receiving the injections. Geneva's records indicate he received those injections on June 24, June 28, and July 5, 2013.(12)
After Claimant's hand healed sufficiently, he began physical therapy on August 8, 2013. The therapist also gave him exercises to perform at home to strengthen his hand,(13) which Claimant continues to perform. Despite the therapy and home exercises, Claimant found he could not grip anything for any duration without pain or numbness. Claimant continued to perform his regular chores around the house, but it took him much longer to complete them.
On September 2, 2015, Claimant was seen at the Rochester General Hospital's Physical Therapy Clinic for an assessment of his functional capacity and the strength of his left hand. The grip and pinch tests with his right hand were slightly below average; his left hand was well-below average on all tests. A mild tremor lasting about 30 seconds was observed during testing. He had difficulty with heavy lifting or carrying. It was determined that Claimant could tolerate activity within the full light-to-medium physical demand level as described by the U. S. Department of Labor.
Prior to the incident, Claimant was a soccer referee and enjoyed physical activities, especially biking and golfing. Due to his hand injury, he is no longer able to enjoy these activities. He has difficulty holding a pen and writing. Even driving can cause pain on a longer trip. The ankle injury he suffered prevents him from refereeing soccer. Claimant testified he averaged $2,500 a season as a referee and is claiming lost earnings as a result of his ankle injury.
Claimant's former wife, Annette Agness, testified about the impact the fox attack had on her and Claimant's lifestyle and relationship. She recalled being horrified when she first saw Claimant at the hospital. His face was uncovered and he had stitches where the doctor repaired the bite marks and tears.
During their marriage, before the attack, Ms. Agness said she and Claimant shared indoor chores and Claimant handled most of the outdoor work. They enjoyed camping and biking together. After the incident, Claimant could not bike for long without pain or numbness in his left hand. She would help with driving on long trips. Both she and Claimant testified that they did not need to hire outside help to do any of Claimant's chores, it would just take longer for him to complete them. She said Claimant's injuries did not significantly impact their relationship.
Claimant moved out of the marital residence in September 2017, and their divorce was finalized May 4, 2018. Claimant testified that the difficulties from the fox attack did not cause the divorce.
Claimant called Dr. Gregory Baum, a board certified plastic surgeon with a private practice that includes cosmetic and reconstructive surgery. Dr. Baum was actually retained by the State to perform an independent examination. The examination took place on September 25, 2018. Dr. Baum reviewed Claimant's medical records, photographs, and various legal documents and performed a physical examination of Claimant. His report was received as part of Exhibit 22.
Dr. Baum noted that the ambulance records(14) indicated Claimant had blood down his arms, legs, face and clothing. The Geneva and Strong hospital records described the injuries to his face and left hand with some minor wounds on his right hand and right bicep.(15) The laceration on the right side of his nose was "through and through" into his nostril with nasal hair coming out of it.(16) Dr. Baum explained that such an injury would be thoroughly cleaned after a local anesthetic was given, then sutured inside and out. The interior stitches would dissolve, but the outer sutures would require removal. The records reflect this treatment for Claimant's injuries on both sides of his nose and sutures under his left eye. According to Dr. Baum, Claimant has fine scars on the bridge of his nose and under his left eye. They are flesh-colored and barely noticeable which is what the Court also observed.
On his left hand, Claimant has healed puncture marks on the palmar and dorsal aspects near the webbing of his left thumb. Dr. Baum performed various strength tests of Claimant's hands. He concluded that Claimant's left hand is weaker than his right hand when gripping or pinching. Dr. Baum said usually a person's dominant hand is as strong or stronger than the non-dominant hand. Upon examination, Claimant had tenderness in his left hand extending to the index finger. Dr. Baum concluded that Claimant had no noticeable deficit facially but has significant weakness with pain in his left hand that is permanent.
In observing Claimant during his testimony, it was clear that this event was very traumatic for him. Although he did not seek professional help, the attack and the resulting medical treatment was painful and distressing. During the year it took for his facial wounds to fully heal, Claimant had many people asking about the incident causing him to relive the events.
Although his facial scars are almost unobservable, the injury to his dominant left hand is significant and permanent. Claimant can no longer enjoy many of his outdoor activities. This was confirmed by Ms. Agness.
Defendant argues that Claimant has failed to prove that the loss of his job from Jasco Tools was due to his injuries. His employer accommodated his medical appointments by giving him flexible hours for a few weeks. Claimant used sick or vacation time when necessary for his medical appointments.Law
The purpose of an award of damages for one injured by another's negligence is to try to return that party, as is pecuniarily feasible, to that party's position before the injury occurred (McDougald v Garber, 73 NY2d 246, 254 ). Pecuniary losses are, of course, easier to compensate than nonpecuniary losses which depend upon " 'the legal fiction that money damages can compensate for a victim's injury' " (Id.). Pain and suffering damages are by nature subjective, and factors to be considered include, "past present and future pain and the long-term effects of the injury" including the "nature, extent and permanency of the injuries, the extent of past, present and future pain and the long-term effects of the injury" (Nolan v Union Coll. Trust of Schenectady, N.Y., 51 AD3d 1253, 1256 [3d Dept 2008], lv denied 11 NY3d 705 ). It is relevant to consider the impact on the enjoyment of life, the ability to perform typical daily tasks and previously enjoyable activities, and the overall impact of the injuries. An award for pain and suffering is a question of fact and will not be disturbed unless it "deviates materially from what would be reasonable compensation" (CPLR 5501 [c]).
Claimant bears the burden to show a causal connection between Defendant's negligence and the asserted losses and injuries he suffered (Gayle v City of New York, 92 NY2d 936, 937 ). For loss wages, Claimant must establish the loss with reasonable certainty, and typically this requires more than unsubstantiated testimony (Shubbuck v Conners, 15 NY3d 871 ; Morgan v Rosselli, 23 AD3d 356, 357 [2d Dept 2005]). In determining the proper amount of future damages it is proper, in the absence of evidence of questionable permanency, for the Court to take judicial notice of the Pattern Jury Instructions Life Expectancy Tables (Cody v State of New York, 59 Misc 3d 302 [Ct Cl, 2017]; Giambrone v Israel Am. Line, 26 Misc 2d 593, 600 [Sup Ct, NY County 1960]; compare LaLima v Fath, 36 AD2d 923 [1st Dept 1971] [medical evidence on permanency was not definitive]). Claimant's life expectancy at the time of this incident was 26.6 years.(17)
Past Lost Wages, Loss of Sick and Vacation Time, Loss of Employer Matching Funds for 401K Contributions, and Reimbursement for the Cost of Health Insurance
Claimant established that after the incident he was laid off from his employment with Jasco Tools as a Quality and Compliance Manager on September 6, 2013. He found other comparable employment beginning on October 14, 2013. Defendant elicited through cross-examination, that Jasco Tools was downsizing its operations and due to the reduced work force required Claimant to perform additional tasks at work. The Court was not persuaded that Claimant was terminated solely because of the downsizing. Rather, Claimant's unrefuted testimony reflected that he was told he was being released because of all the time he was taking off from work for various medical and physical therapy appointments. Claimant quickly mitigated damages by finding a new job a little more than a month later. The Court finds Claimant is entitled to lost wages in the amount of $5,584.00 for the time between September 9, 2013 and October 11, 2013 (5 weeks at 40 hours per week at $27.92 per hour(18) ).
Claimant did not establish his other employment losses. He did not provide sufficient information regarding his employer matched 401K contributions. He testified that Jasco Tools would contribute up to six percent, however, it is not clear what the employer regularly contributed. Claimant provided no information regarding the 401K employer match for his new employer from October 2013, although, Claimant sought 14 months of alleged loss of matching funds. Claimant testified that Jasco refused to pay him his accrued vacation time, however, there is no indication why and he has, therefore, failed to causally relate it to the Defendant's negligence. Claimant also did not provide any proof of his health insurance costs, whether the plans were the same, or supportive evidence of payment. Nor did he provide any proof of his referee income other than his testimony.
Pain and Suffering
In observing Claimant testify about the trauma from being awoken with a rabid fox attached to his face and trying to get free from the relentless attack, the fear, anxiety and pain that he endured was very clear. Even after the attack, Claimant suffered significant pain and the administration of the rabies shots near the fresh wounds caused him even more pain. For an extended time after the attack, the wounds were readily apparent on his face and provoked unwelcome inquiries about what had happened to him. Claimant still has some facial scarring, although, it is now minimal. The injuries to his left and dominant hand, however, are significant and permanent. His strength and grip with that hand are permanently compromised. The limitations also prevent him from participating in many of the activities he previously enjoyed including biking and golf. He has not gone camping since the incident.
Since determining an appropriate sum for past and future pain and suffering is subjective, it is appropriate to look to similar factual cases and the corresponding damage awards to determine what has been found to be "reasonable compensation" (CPLR 5501 [c]). Neither Claimant nor Defendant submitted any case law on this issue. In researching the case, no cases with similar factual scenarios were found. The Court did note several cases involving dog bites with some relevant similarities. The most closely on point was Aversa v Bartlett, 11 AD3d 941 [4th Dept 2004], plaintiff was bitten in the face by defendant's dog causing facial lacerations, bruising, swelling, tear of her left eyelid, causing a temporary inability to open her left eye, nasal fracture and blockage which caused difficulty breathing. She has persistent numbness in her cheek and slight asymmetry in opening of her eyes. Jury awarded $100,000 past damages and $200,000 future damages. The court found the future damages award deviated materially from just and reasonable compensation and reduced the award to $75,000. The court found that the award for past damages was appropriate. In Shurgan v Tedesco, 179 AD2d 805 [2d Dept 1992], the court found that a jury award of $65,000 for injuries sustained by an infant from a dog bite that required multiple surgeries and caused permanent facial scarring was inadequate and should be increased to $150,000. In Fontecchio v Esposito, 108 AD2d 780 [2d Dept 1985], plaintiff was bitten by a dog on her arm leaving almost nonexistent scar. She was given a tetanus shot in the emergency room. The evidence of her anxiety and dog phobia was subjective and conflicting. There was no evidence that the injury impacted her ability to perform most of her household duties and work full time. The court sent the case back for a new trial on damages, finding that a damages award of $240,000 to plaintiff and $70,000 to her husband for loss of services was excessive.
After considering all of the evidence and the factors for consideration as set forth in Nolan, 51 AD3d at 1256, the Court finds Claimant, Randy Agness, is entitled to a total award of $335,584, of which is $250,000 for past pain and suffering and $80,000 for future pain and suffering, and $5,584 for lost wages. Ms. Agness is entitled to a total award of $10,000 for her loss of consortium claim, based upon her testimony that Claimant's injuries did not significantly impact her relationship with Claimant. Claimants are entitled to statutory interest from the date of the liability Decision and Order, June 17, 2016 (Love v State of New York, 78 NY2d 540 ; CPLR 5002).
Claimant and Ms. Agness are also entitled to the amount paid for a filing fee in accordance with Court of Claims Act section 11-a .
Any motions that are still outstanding are hereby DENIED.
LET JUDGMENT BE ENTERED ACCORDINGLY.
September 11, 2019
Syracuse, New York
DIANE L. FITZPATRICK
Judge of the Court of Claims
1. The term Claimant will refer to Randy Agness. His former wife has only a derivative claim.
2. Agness v State of New York, UID No. 2016-018-726 [Ct Cl, Fitzpatrick, J., June 17, 2016], affd159 AD3d 1396 [4th Dept 2018].
3. The parties separated on September 2017 and divorced in May 2018.
4. Claimant's date of birth is February 18, 1962.
5. All quotes are from the trial transcript unless otherwise noted.
6. Exhibit 12.
7. Exhibits 6 - 9.
8. Exhibits 6, 7, and 8.
9. Exhibit 9.
10. Exhibit 20.
11. Exhibits 15 - 18.
12. Exhibit 10.
13. Exhibit 14.
14. Exhibit 5.
15. Exhibits 10 and 11.
16. Exhibit 10.
17. NY PJI3d, Appendix A, Table 1 at 1039 .
18. See Exhibit 20.