Only in New York: 4
State exposes localities
to costly lawsuits
By JAY GALLAGHER
(Original publication: June 16, 2004)
NEW YORK Two hasty dives off a pier at Coney Island on May 23, 1992, not only made quadriplegics out of two young men from Staten Island, they cost the city of New York $25 million.
It could have been much more. The brothers who made their fateful Memorial Day leaps sued the city, and the verdict rendered initially by a Brooklyn jury called for the city to pay more than $104 million, but was reduced in later court action.
The two brothers, Virgil Brown, then 26, and John Brown, then 27, dove off a 700-foot-long, city-owned fishing pier that juts out from the boardwalk of this famous seaside attraction. They had to scale a 3-foot wooden-slat fence to do it, and look down at the shallow water about 10 feet below the pier.
"I was cooling off. It was very hot that day," Virgil Brown, who was a construction worker before the accident, recalled recently.
Now 38, he said he couldn't tell from his perch on the pier that the water was only a few feet deep. He broke his neck when his head slammed into the sand.
His brother, John, seeing Virgil in distress, dove in to try to help and suffered a similar injury.
New York City taxpayers had to pay because the jury decided that the city, which installed the fence, was responsible for the accident, despite what the city claimed was the bad judgment of the two men. The key fault of the city, the court ruled, was not posting "no diving'' signs. That warning is now stenciled every few feet along the fence.
"If there had been a sign telling me not to dive, I wouldn't have done it,'' Virgil Brown said.
If the pier had been owned by the state government rather than the city, however, the award likely would have been far less because the state Legislature has established a separate system, known as the Court of Claims, to hear lawsuits against it. Judges appointed by the governor, not juries, decide the awards. Municipalities want to be allowed to join the system, but the Legislature has kept the door firmly shut.
Many other states have a system that limits awards against all levels of government, on the theory that all citizens and taxpayers have an interest in restraining the payouts.
But there is no protection for local governments in New York. It's another reason that combined state and local taxes in New York are the highest in the nation, local-government officials say.
"We're not a private party. We're a branch of government,'' said Edward Farrell, executive director of the state Conference of Mayors, a leading advocate of extending to municipalities the protections enjoyed by the state. "We believe some coverage should be afforded to public entities. We're not saying there shouldn't be awards, but we should have protections, such as caps, that are available to governments in other states.''
Gov. George Pataki has proposed amending the state constitution to extend to local governments the same rules that govern suits against the state. The idea also has the support of Senate Majority Leader Joseph Bruno, R-Rensselaer County. The Senate, however, won't move on the bill until the Assembly acts under the usual Albany common wisdom that it makes little sense to anger people over something that is unlikely to happen.
And the measure has virtually no chance in the Assembly, which is dominated by Democrats from New York City, where most of the awards and opposition to changing the system come from.
"You know the real world,'' said Assemblyman Anthony Seminerio, D-Queens, sponsor of the reform measure. "This isn't going anywhere.''
Those who want to change the law claim that "runaway'' juries in New York City vote for big awards because they see a chance to reward injured people, while an entity they sometimes perceive as distant and hostile pays the cost.
Opponents to change say the lawsuits are so prevalent in New York City because the jury system provides a vital layer of defense for citizens against wrongs committed by the city government often its police department.
New York City last year paid out about $500 million in claims. In 1978, the total was just $21.4 million. There is no figure for a total paid out by municipalities in the rest of the state, but officials estimate it to be in the millions of dollars.
Meanwhile the state paid out just $32.6 million in Court of Claims awards in 2003.
"People sue the City of New York for just about any injury sustained on city property or incurred during involvement with a City employee,'' according to a city proposal to limit the awards. "Because of sympathetic and generous juries and laws that do not create an even playing field, they often recover in full, even when the city is just the innocent or slightly responsible deep-pocket defendant.''
The city Law Department cites other cases as examples of what it sees as unfair verdicts:
$2.1 million to a passenger who was hurt when a taxi rammed into an abutment. The jury found that the driver was mostly at fault, but that the road design was 5 percent responsible. But under a doctrine of "joint and several liability,'' the city has to pay the bulk of the claim.
$4.8 million to a 12-year-old girl who was a passenger in a car that swerved to avoid hitting a city-owned ambulance and hit a tree. She suffered a broken leg that fully healed.
$1.2 million to a fifth-grade teacher who hurt his knee playing basketball in the school gym/cafeteria. He claimed the cafeteria floor was slippery and not level.
Opponents of changing the law, however, say that giving up jury trials would deprive citizens of one of their most fundamental rights and would be unfair to many city residents, especially minorities.
"The right to a trial by jury is rooted in the New York State Constitution,'' said Martin Edelman, president of the New York State Trial Lawyers Association. "That is a most precious right. To give that up, you need a very powerful reason.''
"Getting rid of jury trials would put regular folks at a disadvantage,'' said Assemblyman Keith Wright, D-Harlem. "If the city needs some relief, it needs to be more vigilant about making things safer.''
Opponents of the move cite another case to make their point. It involved a 29-year-old Florida resident named Anthony Baez, who died after being assaulted by a police officer outside his family's home in the Bronx in 1994.
Baez was asphyxiated after he and his brother got into an argument with police officers after the football they were throwing around banged off the roof of a police cruiser. Family members testified that one of the officers put him in a chokehold.
The officer was cleared of a criminal charge, but the family sued and was awarded $3 million by a jury. Some of the evidence brought forward in the civil case also led to the officer being found guilty in a later federal trial of depriving Baez of his rights.
All of that may not have happened if the Baez family hadn't been able to bring a lawsuit before a jury, Edelman said.
Nor do Edelman and the lawyer who tried the Coney Island case think that the city got a raw deal in that suit.
"There was more than ample evidence that the city had violated state regulations by not posting 'no diving' signs on that pier,'' said Harvey Weitz, the lawyer who represented the Brown brothers. "This was no runaway jury. Factually, I had a powerful case.''
The city doesn't contend that the brothers should not have been compensated, said Thomas Merrill, deputy chief of the city law department's tort division. A Court of Claims judge would have certainly mandated a significant award, he said.
"You get juries who are prone to sympathy,'' he said. "There is a sympathy element. There's not supposed to be.''
The Brown brothers are living on their own, with around-the-clock care paid for with the award from the city, and have learned to manipulate TV remote-controls, telephones, computers and other devices with their mouths.
"Sure I'd like to be able to walk, but I still got my brain, I still got my health," Virgil Brown said. "Some people give up. I'm not in that state of mind.''
He thinks the ultimate decision about awards in cases like his should be left to a jury.
"A judge most likely is not going to feel as compassionate as a jury. The jury will have more compassion,'' he said.
Not all of the money, of course, went to the brothers. Weitz, following standard legal practice, got a third of it, or more than $8 million.
"Do I make a good living at it? I certainly do," Weitz said. "I make no bones about it. I try tough cases some people deem impossible, and I've been successful.''
© 2004, Gannett News Service