Medina v. Chile Communications, Inc.

15 Misc. 3d 525
CourtNew York Supreme Court
DecidedDecember 29, 2006
StatusPublished

This text of 15 Misc. 3d 525 (Medina v. Chile Communications, Inc.) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Medina v. Chile Communications, Inc., 15 Misc. 3d 525 (N.Y. Super. Ct. 2006).

Opinion

[526]*526OPINION OF THE COURT

Lucy Billings, J.

I presided at the trial of this action before a jury August 10 through 15, 2005. On August 15, 2005, the jury rendered a verdict awarding plaintiff damages of $300,000 in past pain and suffering and $700,000 in future pain and suffering over 10 years. Defendants have moved to reduce the verdict on both past and future pain and suffering on the ground that the verdict is excessive. For the reasons explained below, the court denies defendants’ motion. (CPLR 5501 [c].)

As the predicate for awarding plaintiff damages, the jury found against defendants on each basis for their liability: (1) the pit bull dog in defendants’ possession and control that bit plaintiff on July 22, 2002 had vicious propensities, which defendants knew or should have known about; (2) on July 22, 2002, defendants negligently failed to maintain or control the dog or to take other measures to prevent harm to persons from the dog’s behavior, causing plaintiff injury. The jury also found that plaintiff was not negligent in entering the area where the dog that bit him was located. Defendants challenge none of these findings.

I. The Evidence of Damages

The testimony of plaintiff, his expert physician, and defendants’ expert physician establishes that plaintiff suffered and continued to suffer at the time of the trial a combination of injuries that diminished his enjoyment of life. One component of these injuries is his emotional distress from the dog’s violent attack, including intense fear immediately before and during the attack, flashbacks, and an ongoing, intense phobia of dogs that causes him to avoid all dogs. Another element is his nightmares, frequent at first, continuing less frequently, and causing fitful sleep, lost sleep, and consequent fatigue.

The further physical elements of plaintiffs pain and suffering derive from the bites themselves, to both his abdomen and his penis. The raised scar and nerve damage to his penis cause both pain and loss of sensation and consequent sexual dysfunction, which was total for several months following the attack and reduced his sexual functioning permanently. These physical consequences in turn exacerbate his emotional anxiety, feelings of inadequacy, and lost self-esteem in his line of work, intimate relations, and sexual performance.

[527]*527A. Fear and Emotional Distress Surrounding the Dog’s Attack

Plaintiff testified that defendants’ pit bull came at him at great speed, jumped on him, and attempted to bite his throat. When the dog started biting him, he “thought the worst. . . . Something that I’ll never forget . . . .” (Transcript of proceedings at 143, Aug. 11, 2005.) His clothes were torn apart and bloody. He observed an open, bleeding wound in his abdomen. When the dog bit his abdomen and then his penis, the dog’s teeth sank in and stayed embedded in his pants. Plaintiff was stunned by shock at the rapid sequence of events and anxious and in pain due to the bleeding.

Plaintiff was immediately admitted to St. Barnabas Hospital, where he was examined and treated by several physicians and remained overnight, his wounds were cleaned, and he was administered “[v]ery, very strong” antibiotics intravenously, rabies injections, and pain medication. (Id. at 171.) He was transported to his home the next day with instructions to continue oral antibiotics and pain medication, and returned for follow-up examination and treatment three days later.

The medical records detailing plaintiffs emergency condition and treatment were admitted without objection. (Exhibit 10.) Photographs of the wound to plaintiff’s abdomen during the first month after the dog’s attack (exhibits 6, 7), as well as photographs of the current scars to plaintiffs abdomen and penis from the dog’s attack (exhibit 8), also were admitted without objection.

B. Effect on Plaintiffs Livelihood

The puncture wounds to plaintiffs abdomen did not close for approximately three months. During that period he experienced a great deal of pain and pus oozing from the wounds to both his abdomen and his penis.

A taxi driver by trade, plaintiff attempted to drive, but was unable to endure the pinching pain and remained at home for five to six months. Plaintiffs work was important to him, part of his identity, self-esteem, and dignity, evidenced by the long hours he devoted to his work and satisfaction he derived from the services he rendered before the dog’s attack. Although he eventually returned to work, he lost his desire to work and gratification from that work, evidenced by his reduced hours. In addition to physical pain and limitations from the abdominal wounds, he suffered mental and emotional anguish and an enhanced loss of enjoyment in life from his lost desire to work and lost satisfaction in his work.

[528]*528C. Dr. Taranow’s Medical Findings

Douglas Taranow, M.D., specializes in plastic surgery, including rehabilitative and reconstructive surgery. He examines and treats patients in a clinic, performs plastic surgeries, and teaches plastic surgeons. He has treated hundreds of dog bites, continuing routinely in his current practice, so other physicians consult with him regarding his opinions in such cases.

Dr. Taranow testified that dog bites are the worst and dirtiest bites except human bites. A dog bite is “a contaminating wound, . . . there’s a lot of bacteria in a dog’s mouth.” (Transcript at 172, Aug. 11, 2005.) The “bacteria get[ ] under the skin .... It’s a perfect breeding ground for them. . . . [Tjhat’s why we get infected.” (Id. at 173.)

For these reasons plaintiffs dog bites were not stitched and closed, but were left open to “drain out.” (Id.) Because the dog does not just bite, but bites and then tears, the lacerations are jagged holes and do not heal as well as straight lacerations from a knife or piece of glass. Unlike straight lacerations, multiple puncture wounds from dog bites cause crushing injuries that damage structures below the skin and leave dents or divots under the skin.

The photographs of the wound to plaintiffs abdomen during the first month after the dog’s attack (exhibits 6, 7), show the pattern of the dog’s teeth. The dog’s upper jaw alone was approximately 4.5 inches wide. The dog “got a good grip” (transcript at 181, Aug. 11, 2005), and “a good piece of him,” as shown by the puncture wounds from each tooth that cut through all the layers of skin and broke the blood vessels underneath. (Id. at 182.) The vertical lines extending from the teeth marks show that the dog grabbed plaintiff, then “let go a little,” and went “for a better bite” in another area. (Id. at 183.) The dog’s teeth slid down plaintiffs skin to the second area “leaving ... a track mark.” (Id. at 184.) The bites caused damage far beyond where they penetrated, as shown by the large surrounding black and blue area.

When plaintiff returned to St. Barnabas Hospital on July 26, 2002, he exhibited a pool of blood from internal bleeding collected under his skin in his lower right abdomen. He was in pain and suffered from nausea and diarrhea. When the dog bites penetrated into plaintiffs blood vessels, the bacterial infection from the bites spread from the wound sites to his blood stream, which increased the wounds’ size and the loss of tissue and inhibited healing.

[529]

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15 Misc. 3d 525, Counsel Stack Legal Research, https://law.counselstack.com/opinion/medina-v-chile-communications-inc-nysupct-2006.