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SCHOTTKA v. AMERICAN EXPORT ISBRANDTSEN LINES

November 13, 1969

Nicholas SCHOTTKA, Plaintiff,
v.
AMERICAN EXPORT ISBRANDTSEN LINES, INC. and Bethlehem Steel Corp., Defendants



The opinion of the court was delivered by: CROAKE

MEMORANDUM

On January 9, 1967, plaintiff, Nicholas Schottka, was working as third assistant engineer aboard the S/S CONSTITUTION. The ship was owned and operated by defendant, American Export Isbrandtsen Lines, Inc., and was in the repair yard of defendant, Bethlehem Steel Corporation.

In a jury trial before the undersigned, extending from October 20, 1969 to October 22, 1969, plaintiff brought an action against defendants for injuries allegedly sustained on January 9, 1967 as a result of the unseaworthiness of the S/S CONSTITUTION and the negligence of the defendants. Plaintiff alleged that when, after descending a ladder on the ship in the performance of his duties, he stepped down on the floor plate below, that floor plate gave way because of defective positioning. Plaintiff claimed that as a result he fell through approximately three or four feet to the bilges below, injuring himself.

 The jury made the following special written findings: (1) that the ship was unseaworthy and that this unseaworthiness was a proximate cause of plaintiff's injuries; (2) that the ship owner, American Export Isbrandtsen Lines, Inc., was not negligent; (3) that Bethlehem Steel Corporation was negligent and that its negligence caused the unseaworthiness of the ship; (4) that plaintiff was not guilty of any contributory negligence; and (5) that plaintiff was damaged in the sum of $ 50,000. Accordingly, the jury gave plaintiff a verdict of $ 50,000 against Bethlehem Steel Corporation.

 MOTION OF DEFENDANT BETHLEHEM STEEL CORPORATION FOR A NEW TRIAL

 Defendant Bethlehem Steel Corporation moves that the jury verdict of $ 50,000 obtained against it by plaintiff be set aside as contrary to the weight of the evidence and as grossly excessive. Defendant American Export Isbrandtsen Lines, Inc., joins Bethlehem Steel Corporation in this motion.

 The first ground urged by defendant Bethlehem Steel Corporation supporting its motion that this Court set aside the jury verdict is that the verdict is contrary to the weight of the evidence. This Court does not find that the jury's special written findings on the liability questions in the case are contrary to the weight of the evidence and thus will not disturb these findings.

 Defendant Bethlehem Steel Corporation's second ground is that the verdict is grossly excessive. We will consider this question in detail.

 There was only one item of special damages claimed by plaintiff. This was the item of lost wages. It was stipulated by the parties that plaintiff lost 3 1/2 months from work, amounting to a monetary loss of $ 4,200, as a result of the accident. There was no evidence that plaintiff suffered any subsequent loss of ability to work. It was undisputed that he had lost no work time since returning to work and, in fact, had been promoted to second assistant engineer at a higher rate of pay.

 Plaintiff made no claims for medical or hospital expenses. The injury plaintiff complained of was an abrasion and laceration of the right shin, or, more technically, the anterior portion of the right leg between the knee and ankle. The medical diagnosis of plaintiff's injury was traumatic cellulitis of the right leg. Plaintiff also complained that he sustained a reaction to penicillin, which was used to treat an infection that developed from the cut on his leg. Plaintiff's reaction appeared in the form of hives and swelling of his eye and face, and other discomforts, lasting several days. There was no evidence that plaintiff sustained any broken bones or loss of mobility. Plaintiff's injuries did result in the discoloration of several areas of the skin, but there was no evidence that this is in any way disabling. Plaintiff's medical expert testified that plaintiff suffers from a permanent condition of extensive scarring in the right shin bone area and from a permanent pressure point tenderness. The doctor testified that the shin area even in a normal leg has a poor blood supply and that plaintiff's scars further exacerbate this condition, making the leg more susceptible to injury. Plaintiff testified, however, that he has had no subsequent trouble with the shin.

 On the question of pain and suffering, the evidence indicated that plaintiff suffered the above-mentioned reaction to penicillin and also that while hospitalized he was treated with morphine to reduce his pain. However, the evidence does not indicate that plaintiff suffered any substantial pain and suffering of a protracted nature. Plaintiff did testify that he still has pressure point tenderness in the shin area and that he wore a protective covering over the shin for approximately a month after returning to work. However, plaintiff himself admitted that since about a month after returning to work, he has had no pain in his leg. Likewise, plaintiff's medical expert testified that when he examined plaintiff, the latter had no pain or other discomfort in the leg.

 Thus, this Court has closely scrutinized the evidence that was presented at the trial on the question of damages. Quite frankly, the conscience of the Court is shocked by the excessiveness of the verdict. After much reflection, this Court finds that the verdict of $ 50,000 against Bethlehem Steel Corporation is so grossly excessive as to exceed the recovery which the law will allow. See Butts v. Curtis Pub. Co., 225 F.Supp. 916 (D.C.Ga.1964), motion for new trial denied, 242 F.Supp. 390, aff'd, 351 F.2d 702 (5th Cir. 1965), aff'd 388 U.S. 130, 87 S. Ct. 1975, 18 L. Ed. 2d 1094 (1967). As Judge Levet has indicated:

 'When the sum agreed upon by the jury is so vastly at variance with what common sense and experience dictate to be a fair allowance in the particular circumstances of the case, courts have not hesitated to exercise their discretionary power to modify the verdict in the interest of fairness to all parties.' Meehan v. Central R.R. R. of New Jersey, 181 F.Supp. 594, 608 (S.D.N.Y.1960).

 Moreover, having determined that this verdict is so grossly excessive as to be illegal, this Court has the duty to set it aside. As Judge Waterman pointed out in Dellaripa v. New York, New Haven ...


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