Johnson v. School District of Poughkeepsie

Appellate Division of the Supreme Court of New York

Johnson v. School District of Poughkeepsie

83 A.D.2d 931, 442 N.Y.S.2d 581, 1981 N.Y. App. Div. LEXIS 15384

CourtAppellate Division of the Supreme Court of the State of New York

DecidedSeptember 8, 1981

StatusPublished

Cited by3 cases

This text of 83 A.D.2d 931 (Johnson v. School District of Poughkeepsie) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Johnson v. School District of Poughkeepsie, 83 A.D.2d 931, 442 N.Y.S.2d 581, 1981 N.Y. App. Div. LEXIS 15384 (N.Y. Ct. App. 1981).

Pincite

Opinion

In an action to recover damages for personal injuries, etc., plaintiff appeals, upon the ground of inadequacy, from a judgment of the Supreme Court, Dutchess County (Quinn, J.), entered May 12, 1980, in her favor, in the principal sum of $10,000. Judgment reversed, on the law, without costs or disbursements, and matter remanded to the Supreme Court, Dutchess County, for a new trial on the issue of damages only. Due to the negligence of defendants, the infant plaintiff suffered burns over 9% of her body. In the original medical report supplied by plaintiff dated September 22,1977, it was stated that the burns were only first and second degree. The bill of particulars, served subsequently, described the burns as second and third degree. Immediately prior to trial, in April, 1980, the same physician who had previously examined the infant plaintiff, examined her again and determined that in fact some of the burns were third degree. The trial court, pursuant to section 672.8 of the Rules of the Supreme Court, Appellate Division, Second Department, refused to permit the doctor to testify that third degree burns were suffered by the plaintiff. Said section states, in part, that “no party shall be permitted to offer any evidence of injuries or conditions not set forth or put in issue in the respective medical reports previously exchanged” (22 NYCRR 672.8). Under the circumstances of this case, we find that the trial court construed this rule too strictly. Third degree burns, as contrasted to second or first degree, cannot be considered an injury or condition. Rather, it relates to the severity of the injury or condition known to exist and previously put in issue in the medical report. Although defendants claimed surprise and prejudice, there is none that is apparent. Testimony regarding “third degree” burns would be appropriate [932]*932and relevant on the issue of damages for pain and suffering. Therefore, a new trial on the issue of damages alone is required. We note further that the Trial Judge was unduly restrictive regarding evidence of permanency of plaintiff’s injuries, as well as the humiliation and anxiety she suffered because of the injuries. Such are appropriate items to be considered at the new trial in determining damages. Mollen, P.J., Hopkins, Titone and Weinstein, JJ., concur.

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In an action to recover damages for personal injuries, etc., plaintiff appeals, upon the ground of inadequacy, from a judgment of the Supreme Court, Dutchess County (Quinn, J.), entered May 12, 1980, in her favor, in the principal sum of $10,000. Judgment reversed, on the law, without costs or disbursements, and matter remanded to the Supreme Court, Dutchess County, for a new trial on the issue of damages only. Due to the negligence of defendants, the infant plaintiff suffered burns over 9% of her body. In the original medical report supplied by plaintiff dated September 22,1977, it was stated that the burns were only first and second degree. The bill of particulars, served subsequently, described the burns as second and third degree. Immediately prior to trial, in April, 1980, the same physician who had previously examined the infant plaintiff, examined her again and determined that in fact some of the burns were third degree. The trial court, pursuant to section 672.8 of the Rules of the Supreme Court, Appellate Division, Second Department, refused to permit the doctor to testify that third degree burns were suffered by the plaintiff. Said section states, in part, that “no party shall be permitted to offer any evidence of injuries or conditions not set forth or put in issue in the respective medical reports previously exchanged” (22 NYCRR 672.8). Under the circumstances of this case, we find that the trial court construed this rule too strictly. Third degree burns, as contrasted to second or first degree, cannot be considered an injury or condition. Rather, it relates to the severity of the injury or condition known to exist and previously put in issue in the medical report. Although defendants claimed surprise and prejudice, there is none that is apparent. Testimony regarding “third degree” burns would be appropriate [932]*932and relevant on the issue of damages for pain and suffering. Therefore, a new trial on the issue of damages alone is required. We note further that the Trial Judge was unduly restrictive regarding evidence of permanency of plaintiff’s injuries, as well as the humiliation and anxiety she suffered because of the injuries. Such are appropriate items to be considered at the new trial in determining damages. Mollen, P.J., Hopkins, Titone and Weinstein, JJ., concur.

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Bluebook (online)

83 A.D.2d 931, 442 N.Y.S.2d 581, 1981 N.Y. App. Div. LEXIS 15384, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-school-district-of-poughkeepsie-nyappdiv-1981.

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