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Norcia v. Dieber's Castle Tavern, Ltd.

United States District Court, S.D. New York

October 29, 2013

ANGELA NORCIA, Plaintiff,
v.
DIEBER'S CASTLE TAVERN, LTD. et al., Defendants

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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For Plaintiff: Thomas Peter Giuffra, Esq., Rheingold, Valet, Rheingold, McCartney & Giuffra, LLP, New York, NY.

OPINION

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OPINION AND ORDER

KENNETH M. KARAS, UNITED STATES DISTRICT JUDGE.

In this " dram shop" personal-injury action, Plaintiff Angela Norcia (" Norcia" ) seeks to recover damages for injuries she sustained when a speedboat operated by Frank J. Dieber, Jr. (" Dieber, Jr." ) collided with the cruiser on which she was a passenger. Plaintiff seeks to recover damages from owners and operators of the bars that served Dieber, Jr. alcohol in the hours leading up to the accident (" Defendants" ). As the Court previously granted a default against Defendants, the only remaining task is to determine the amount of damages to which Plaintiff is entitled.

I. Background

A. Factual Background

The following facts are based on Plaintiff's Complaint, the testimony that Plaintiff and her mother, Ms. Patricia Duffy Vreeland (" Vreeland" ), gave at an Inquest Hearing that the Court held on September 13, 2013, and the exhibits received at that hearing. Because Defendants defaulted, no facts have been proffered on their behalf, and the Court accepts Plaintiff's well-pleaded allegations as true. See Cement & Concrete Workers Dist. Council Welfare

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Fund, Pension Fund, Annuity Fund, Educ. & Training Fund & Other Funds v. Metro Found. Contractors Inc., 699 F.3d 230, 234 (2d Cir. 2012) (" [I]t is well established that . . . a party's default is deemed to constitute a concession of all well pleaded allegations of liability . . . ." (internal quotation marks omitted)).

During the relevant time period, Defendants owned and operated a bar located at 13 Castle Court in Sterling Forest, Orange County, New York, known alternatively as " Dieber's Breezy Point," " The Castle Tavern & Marina," or " The Castle Tavern." ( See Compl. ¶ ¶ 10-68.) On or about June 29-30, 2007, the bar served Dieber, Jr. alcohol in excessive amounts, continued to do so even after he was visibly intoxicated, and then permitted him to leave the premises. ( See id . ¶ ¶ 69-74.) After leaving the bar, Dieber, Jr. boarded and operated a twenty-foot Formula SR1 speedboat on Greenwood Lake, also located in Orange County. ( See id . ¶ 75.) Early in the morning on June 30, 2007, Dieber, Jr. was speeding and operating the speedboat in a reckless and dangerous manner when he violently collided with the anchored and floating twenty-foot Riviera pontoon-style cruiser vessel on which Plaintiff was a passenger. ( See id . ¶ 78-79.)

According to Plaintiff, " [t]he pontoon boat was completely destroyed, split almost down the middle on top." (Inquest Hr'g Tr. 13.) The speedboat that Dieber, Jr. was driving had gone " completely over [Plaintiff's] arms." ( Id. at 14.) At the Inquest Hearing, Plaintiff described what happened to her as a result of the collision: " [A]ll of a sudden, I realized that . . . I was starting to taste blood and . . . my arm started to burn . . . I was just in very intense pain, and I couldn't get up." ( Id.)

After the collision, Plaintiff was medically evacuated via helicopter from the scene of the accident to Westchester Medical Center. ( Id. at 15.) Ms. Vreeland, who is an emergency-room nurse, first saw Plaintiff in her injured state in the hospital waiting room. ( See id. at 53-54.) Ms. Vreeland described both of Plaintiff's arms as " outstretched" and " bloody through the covers." ( Id. at 54.) She observed that Plaintiff's arm and hand were nearly perpendicular to one another, and that she could " see bones outside the flesh." ( Id. at 54, 56.) She also saw hospital staff " trying to pull the arm out and bring the bones back in and reattach." ( Id. at 56.)[1]

Plaintiff subsequently underwent seven surgeries during the two-and-a-half weeks that she remained at the hospital. ( See id. at 18-19, 22.) Her doctors attached an external fixator, and " replaced a lot of [her] bones . . . with pins and rods." ( Id. at 17-18, 21, 58.) They explained to her that her " bones were almost like Rice [K]rispies. They were shattered and broken and . . . sticking out." ( Id. at 22.)

Plaintiff became aware of the extent of her injuries after her first surgery. ( See id. at 17.) She described the magnitude of the pain she endured: " [I]t's something where . . . nothing can stop it. It's almost like . . . you want to rip your whole body apart because . . . it's so painful. I mean, I don't really know how to pinpoint it because it's just your whole entire body is just in a state of something you never felt before." ( Id. at 18.) Plaintiff was in so

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much pain that " at points, [she] was inconsolable . . . . [She] was a complete mess." ( Id.) She would sometimes wake up in the morning and " be screaming in pain because . . . [the] medication [had worn] off, and there was nothing [that she] could do . . . ." ( Id. at 23.) " [E]motionally, [she] was completely all over the place . . . angry one minute, crying the next minute . . . ." ( Id.)

Ms. Vreeland described the challenges her daughter faced while hospitalized. " Angela is a young girl, and she was in there a long time and . . . things that young girls have to take care of, personal things, she couldn't do . . . there [were] male technicians, male nurses. It was very hard for her. And she had a number of breakdowns, some from pain. One particular instance where she was left in a bloody bathroom for hours without help because . . . she's a young girl and she wouldn't let the male [attendant] in . . . ." ( Id. at 59.)

During the recovery period following her discharge from the hospital, Plaintiff's left arm was cast in plaster, while her right arm was in a molded cast capable of being removed, but wrapped underneath. ( See id. at 24.) For months after returning home, she was unable to " take care of [the] activities of daily living," such as brushing her hair, eating, and going to the bathroom. ( Id.) Her incapacity made her feel " [l]ike garbage. Like 25 going on 6 . . . . It was not a very happy situation for [her]." ( Id. at 24-25.) Plaintiff was unable to use the restroom or bathe without assistance until September 2007, when the cast on her left arm was finally removed. ( See id. at 25.)

Plaintiff's injuries and the surgeries to repair them left her with substantial scars up and down both of her arms, which she displayed to the Court at the Inquest Hearing. ( See id. at 31.) Ms. Vreeland noted that when Plaintiff's cast was removed, " the sutures [were] black. The scarring around it [was] black . . . . And that's what she saw the first time. And that's when she said that she didn't want to live anymore, when she became depressed." ( Id. at 60-61.) " It was very hard for her . . . . She was a 24-year-old with these . . . arms that looked to her like she was a monster." ( Id. at 62.)

After this period of home rest, Plaintiff began a " painful" physical-therapy regimen at Valley Hospital in Ridgewood, New Jersey, which she continued for three to six months. ( Id. at 25-26.) Plaintiff's hand " was stuck at a 90 degree angle," so the physical therapists " spent a lot of time stretching [Plaintiff's] arm and trying to get [her] to function, because there was so much nerve damage and [her] fingers didn't work." ( Id. at 25; Inquest Hr'g Ex. A.) In February 2008, she was required to undergo additional surgery, to remove a screw that had broken through the skin on her arm. (Inquest Hr'g Tr. 26.)

At some point, Plaintiff also began psychological treatment in a group-therapy program, before switching to a private psychiatrist. ( See id. at 27.) Plaintiff sought mental-health treatment after a visit to one of her doctors, who informed her in front of the rest of the waiting room that he could not continue to provide her with free casting supplies, as she was uninsured. ( See id .) " So [Plaintiff] wound up basically having a breakdown and pretty much wanted to kill [herself] . . . . [She] was admitted to Valley Hospital that day to get a psychiatric evaluation. And they wanted to commit [her] to a psychiatric hospital . . . [but] [she] refused because, unfortunately, it was [her] choice at the time . . . ." ( Id.)

Plaintiff also lost many of her friends. As Plaintiff explained: " [U]nfortunately, I knew the person that ran me over. And

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we were all in a group of friends. And it completely divided our community . . . . [P]eople took sides . . . . [T]hey blamed us [for the accident] . . . . So I got a lot of ridicule . . . ." ( Id. at 28.) During this time, Plaintiff's physical pain continued. ( Id. at 29.)

When Plaintiff began seeing a psychiatrist, he attempted to address her sleeping issues and nightmares by prescribing sleep medication and talking through what had happened. ( See id .) Although her visits to the psychiatrist helped " in some aspects," Plaintiff eventually stopped going, because " it was expensive," and she had no insurance and was unemployed, and her mother was paying " a hundred dollars a session" for Plaintiff to go there weekly. ( Id. at 30.)

Based on her injuries, Plaintiff was eligible to receive disability. ( See id. at 34.) But in an extraordinary display of resolve, she refused to accept a disability determination, and instead rejoined the workforce. ( See id. at 34-35.) As Plaintiff forcefully described, she " couldn't sit at home for the rest of [her] life and not work and live by minimal means," saying that to do so would have been " just impossible." ( Id. at 34.)

Plaintiff currently works as a flight attendant for a major airline, a position that she has held for three-and-a-half years. ( Id. at 34-35.) At the Inquest Hearing, Plaintiff and Ms. Vreeland described in detail the significant professional challenges that Plaintiff has had to overcome because of her injuries. ( Id. at 34-35, 63.) For example, Plaintiff testified that sometimes when she gets home from work she is " in so much pain that . . . [her] mom gets a text message at 1:00 in the morning, when [she has] gotten back from a flight," ...


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