SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT
March 11, 1969
RUTH FRIEDMAN, NOW KNOWN AS RUTH EIDER, AN INFANT, BY JOSEPH FRIEDMAN, HER PARENT, ET AL., RESPONDENTS,
STATE OF NEW YORK, APPELLANT
Appeal by the State from a judgment of the Court of Claims in favor of the claimants.
Gibson, P. J., Herlihy, Reynolds, Staley, Jr., and Greenblott, JJ., concur in memorandum Per Curiam.
Author: Per Curiam
The factual situation, on which the negligence of the State is predicated, is set forth in detail in the comprehensive opinion of the Court of Claims. (See 54 Misc. 2d 448.) Suffice it to say that the infant claimant was stranded in a chair lift some 20 feet to 25 feet above the ground and the negligence of the State in the operation of the lift was clearly established, as was the claimant's freedom from contributory negligence; the latter without reference to the factor of moral compulsion adverted to in the proof and in the trial court's decision, upon which factor we do not pass. The more difficult issue concerns damages. The court properly struck the testimony relative to convulsion disorder. The court found that the facial injuries consisted primarily of a broken nose and two facial scars which, upon observation at the trial, had faded but were still perceptible. There was also a finding that the claimant suffered pain and at the time of the trial had headaches, was irritable and forgetful. The circumstances surrounding the happening of the accident and the plight of the claimant admittedly arouse sympathy, but such may not be considered in making an award. We consider $35,000 for the above injuries to be excessive and accordingly reduce the amount to $20,000 and affirm the award to the claimant father for special damages.
Judgment modified, on the law and the facts, by reducing the award to $20,000, with appropriate interest, and, as so modified, affirmed, with costs to respondents.
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