The opinion of the court was delivered by: Charles J. Siragusa United States District Court
This negligenceaction, based upon diversity jurisdiction and controlled by New York law, was tried before the Court without a jury on October 23, 2006. Both plaintiff, Terri Marshall, and her husband, Andrew Marshall, testified at trial. The only other testimony presented was the videotaped examination of plaintiff's treating physician, Dr. Kevin Coughlin. The Court, having considered the testimony of the witnesses and exhibits received into evidence, now, pursuant Fed. R. Civ. Proc. 58 (c), makes its Findings of Fact and Conclusions of Law.
As of the date of trial, plaintiff, Terri Jo Marshall was forty-eight years old. She was married to Andrew Marshall and lived at 708 Chester Street, Elmira, New York. She was employed as a medical transcriptionist and had been so employed for approximately eight years. As of September 1, 2004, she was employed in that capacity by Medquest.
Prior to September 1, 2004, plaintiff engaged in a number of activities. She did aerobics at home a few days a week. Additionally, she used video tapes to do weight training at home. She liked to run and play badminton and tennis, and she also liked to go to the mall, dance, and play with her five grandchildren. Around the house, she did the laundry, cooking, cleaning, shopping, and mowed the grass. Moreover, she tried to walk every day, or as much as she could, to relax and relieve stress. In any given week, plaintiff would walk at least four out of seven days.
Furthermore, prior to September 1, 2004, plaintiff did not have any problems with her left leg, left knee, or left pelvis, nor did she have any pain in her lower back. However, she did have a problem with bladder control, and on occasion experienced urgent incontinence, and, when it occurred, she would have to relieve herself as quickly as possible. Prior to September 1, 2004, though, she had not experienced the condition while out walking.
On September 1, 2004, plaintiff went for a walk, wearing flip-flops, between 10:00 p.m. and 10:30 p.m. Although it was dark out, it was a nice evening for a walk. Plaintiff proceeded down Chester Street, and walked about two blocks to Pine Street where she turned right. She then proceeded on Pine Street for approximately a block to the intersection of Franklin Street, where there was a traffic light. She crossed Franklin Street and continued for another block to Perine Street. She turned right onto Perine Street, walked a long block until she came to South Avenue, and then turned left. She proceeded on South Avenue for about four blocks, crossed over Pennsylvania Avenue, and walked down a long block to Main Street. She crossed over Main Street and continued on South Avenue for another long block until she came to Clements Parkway, which is a four lane divided highway with a traffic light. She crossed Clements Parkway, and walked on the sidewalk on the left hand side of South Avenue, facing traffic. She continued to a railroad underpass, which is about twenty feet beyond the intersection of Clements Parkway. The railroad tracks pass above South Avenue.
When plaintiff arrived in the area of the railroad underpass, she experienced an urgent need to urinate. The closest facility with a bathroom was the High Bar, which was located a couple of blocks behind her on South Avenue. Based upon the urgency to relieve herself, it would have taken plaintiff too long to return there. She looked for a private area to relieve herself and observed a path off to her left, adjacent to the sidewalk on South Avenue, where she noticed some bushes and trees. By stipulation of the parties, the path was on land owned by the defendant, Pennsylvania Lines, LLC c/o Norfolk Southern Railway Company. Although it was dark out and she had never been on the path before, she was able to see it because of some small lighting offered by the underpass. The path, which was wide enough to accommodate two people, was about 17 feet across and had a slight grade to it, leading up to the railroad embankment. There was no sign prohibiting or fence obstructing her ability to enter onto the path.
Plaintiff proceeded up the path some distance and then stopped to relieve herself. However, a car then turned onto South Avenue from a side street and headed in her direction. She reacted to the car lights by proceeding farther up the path. Then all of a sudden, approximately 108 feet along the path, as measured from the sidewalk on South Avenue, she fell off a ledge. It was very dark in the area where this occurred and when this happened she was hurrying, not paying attention to the ground. She in fact fell three feet off a concrete structure which traversed the path. It was about 11:00 p.m. when plaintiff fell. After falling, she tried to get up, but was unable to do so. She then called her husband, Andrew Marshall, using her cell phone. She was screaming and told him that she thought that she had broken her leg. Plaintiff's husband asked her to tell him were she was located, and she tried to describe for him where she was. After he told her he would get her help, she hung up with him and called 911. The 911 operator told her to keep hollering until she heard someone coming. At that point she wasn't in pain, just scared.
Plaintiff's husband arrived in the vicinity where she had fallen just before the Fire Department. She heard emergency vehicles arriving and her husband shouting, however they were unable to actually locate her, so she called her husband again on her cell phone. The area where she had fallen was thick with over growth. Plaintiff's husband had to break bushes apart to get to her. Ambulance personnel arrived about 11:30 p.m. When they tried to move plaintiff, she could feel the bones in her leg as if they were rubbing together. Plaintiff was then screaming in pain. Her husband observed a bone sticking out of her leg. She was transported to the Emergency Department at St Joseph's Hospital in Elmira, New York.
When plaintiff arrived at St. Joseph's, she was in severe pain and the bone in her left leg was still protruding. Once at the hospital, she began asking for pain medicine. She was seen by an orthopedic specialist, Dr. Kevin Coughlin. Dr. Coughlin examined her, diagnosed a grade one compound or open fracture to plaintiff's left tibia*fn1 , and determined that it was going to require operative stabilization. However, Dr. Coughlin decided not to perform surgery at that point, since plaintiff had recently eaten, and he believed it advisable to allow the food to digest over the next day before operating. The type of fracture that plaintiff sustained is very painful, and, while she was being treated in the emergency room she was screaming. That night she was given antibiotics intravenously to prevent infection and was also administered narcotics intravenously for pain. The next day, September 2, 2004, she was stressed, uncomfortable, and experienced swelling in her leg.
On that same day, September 2, 2004, her husband returned, during the daytime, to the location on the path where plaintiff fell. He observed what appeared to be the letters "B," "G," and "A" spray painted on the concrete structure from which his wife fell, as well as black and blue graffiti painted on the structure. In the area below the drop-off he also saw a hubcap hanging from a tree and a considerable number of beer and soda cans and wine and whiskey bottles. Approximately fifty years ago, the area where plaintiff fell was fenced in, and included the American LaFrance Ice Company, that apparently utilized the path to load ice onto trains.
On September 3, 2004, Dr. Coughlin performed surgery on plaintiff. He stabilized the fracture with an intermedullary device, a metal rod, and then applied a cast. Following the operation, plaintiff was continued on medication for pain. On September 5, 2004, she was discharged from the hospital. She could not bear weight on her left leg and was given a wheel chair and crutches to assist her. However, she did not feel comfortable enough with the crutches to use them. When she returned home, special accommodations were required. Her husband set up her bedroom, which was on the second floor, like a hospital room. He put in a porta-potty and had everything, including her medications and drinks, accessible to her on a tray. The ...