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Decided on October 26, 2007
Supreme Court, Kings County

18743/02
Attorneys for Plaintiffs Shaub, Ahmuty, Citrin & Spratt 1983 Marcus Avenue Lake Success, NY 11042
(516) 488-3300 Attorney for Defendants Corporation Counsel
100 Church Street
New York, NY 10007
(212) 788-0705
Lawrence J. Knipel, J.
Defendants The City of New York and the Board of Education of the City of New York move for an order, pursuant to CPLR 4404(a), setting aside the jury verdict in favor of plaintiffs and either directing verdict in their favor or directing a new trial on the issue of liability. Alternatively, defendants seek a new trial on the issue of damages on the ground that the awards are unsupported by the evidence and are excessive. Plaintiff Naquan Jeter cross-moves for an order, pursuant to CPLR 4404, directing that those damages be increased.
The infant plaintiff (plaintiff), then a sixth grader at Intermediate School 292 in Brooklyn (IS 292), was seriously injured when he fell down a flight of stairs on his way to lunch. Because of the resultant traumatic brain injury, plaintiff was unable to remember what caused him to fall. However, it was plaintiff's theory at the trial of this action, which commenced on Match 27, 2007, that he was pushed down the stairs by a group of older students. Plaintiff further presented testimony that it was the written policy of IS 292 to have a teacher escort the sixth graders down to lunch from their second floor classrooms. Plaintiff claims that his teacher's negligent failure to do so proximately caused his injury.
On April 2, 2007, the jury found defendants "negligent in the supervision of plaintiff" and further found that that negligence was a substantial factor in causing the injuries sustained by him. The jury awarded plaintiff damages in the aggregate sum of $200,000 for past pain and suffering and $150,000 for future (58 years) pain and [*2]suffering. The jury also awarded plaintiff damages of $800,000 for impairment of future earnings during the next 45 years.
Defendants and plaintiff now make the aforementioned motion and cross motion.
THE EVIDENCE AT TRIAL
The Plaintiff's case
David Prager testified that he was employed by the Board of Education and sometime in mid-January, 2002 he was assigned to IS 292. Mr. Prager explained that, at that time, the school had issues with discipline and was also going through a transition - it had a new principal, as well as several other new personnel. Mr. Prager stated that he was sent to the school to increase the administrative presence - his duties included monitoring the hallways and stairwell to insure that students did not congregate there and create a safety and discipline hazard.
Mr. Prager testified that the sixth graders were treated differently than the older students at the school because it was recognized that, as the youngest students at the school, they were at the greatest risk of being injured as a result of older students gathering in the hallways or in the stairwells. He acknowledged that one of the reasons the administration did not want children to loiter in the stairwells was to avoid the risk of a small child being be pushed or falling down the stairs. To minimize this risk, the administration created several procedures. First, instead of having the sixth graders move from class to class, the various subject matter teachers would come to their classrooms. Moreover, a written policy was created whereby each teacher who taught a sixth grade class before lunch was required to accompany his or her students from the second floor, where the classrooms were located, to the first floor lunchroom.
Mr. Prager testified that on the day of plaintiff's accident, after the bell rang for sixth grade lunch, he walked along the second floor hallway and then down to the lunchroom on the first floor. While in the cafeteria, he heard the late bell sound and, thereafter, went back up to the second floor to see if there were any stragglers.
Mr. Prager stated that at first he saw no students as he walked down the second floor hallway, but, then, a group of students ran in front of him, allowing him only a view of them from the back. Mr Prager heard someone in the group scream, "Prager is coming" and then the group opened the stairway door and disappeared from sight. Shortly thereafter, Mr. Prager entered the stairwell - the group of running students had disappeared, but as he looked down the stairs, he saw droplets of blood on the landing and observed plaintiff being led down the hall by a school safety officer who had been stationed on the first floor. Mr. Prager later learned that plaintiff was taken to the nurse's office and left the school by ambulance.
Mr. Prager never learned the identity of the group of students he had witnessed running down the stairway and, in fact, they were never identified. [*3]
Plaintiff testified that, on January 30, 2002, he had been in math class on the second floor right before lunch and that the teacher for the class was Mrs. Thomas. According to plaintiff, Mrs. Thomas never escorted her class to the lunchroom and that day was no exception. Plaintiff stated that at the sound of the bell, he and his friend Nathaniel headed to one stairwell, while the rest of the class went to the stairwell at the other side of the hall. Nathaniel did not see any adults in the stairwell when he got there, but there were a group of older boys there who moved over as he and his friend approached.
Plaintiff testified that he suddenly heard footsteps which sounded like they were coming from a herd of buffalo and the next thing he remembered was waking up in the school nurse's office with a tissue on his forehead and blood stains on his shirt. Plaintiff was taken by ambulance to Brookdale Hospital (Brookdale) where he spent time in the Intensive Care Unit.
At trial, plaintiff detailed the "excruciating" pain he suffered immediately following his accident and for the six days he spent in the hospital. Plaintiff described this pain as being in his head, neck, and lower back. Additionally, his arms and leg were swollen and sore and he was in a neck brace.
After his release from the hospital, plaintiff received outpatient physical and occupational therapy there. The purpose of the physical therapy was to improve his balance and mobility skills and the occupational therapists sought to improve plaintiff's hand/eye coordination and to build strength in his arms. Plaintiff stopped attending therapy in August, 2002, but had to use a cane for
balance for about three years.[FN1]
Plaintiff testified that he was home-schooled for the remainder of sixth grade and returned to school the next year. According to plaintiff, he has a much harder time understanding his schoolwork since his accident and, as a result, his grades have substantially dropped. He also is unable to remember more than one item at a time and feels "dumb and frustrated". Plaintiff testified that he planned to attend college to study graphic design. He stated that he liked computers, but that it takes him much longer to finish video games than it did before his injury.
Plaintiff testified that up to about a year before the trial he would get very bad headaches every week or two and these headaches would last between two and three days. When he had a headache, all he wanted to do was sleep because it hurt to be around noise and light. At trial, plaintiff reported that he continues to take medication to prevent the return of these attacks. Lastly, plaintiff testified that his head injury has affected his ability to play sports because he is unable to stand for long periods or to jump. [*4]
Dr Eric Minkin, a radiologist at Brookdale testified that, on January 30, 2002, he examined x

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