
    Rocco Figliomeni, an Infant, by Frank Figliomeni, His Father, Respondent, v Board of Education of the City School District of Syracuse et al., Appellants, et al., Defendant.
    Argued September 18, 1975;
    decided December 2, 1975
    
      
      Edward P. Kearse, Corporation Counsel, for appellants.
    I. The verdicts in the first trial were compromises as to liability and should be reversed in their entirety. (Friend v Morris D. Fishman, Inc., 302 NY 389; Ganz v Hi-Line Co., 278 App Div 761; Lallo v Grant Co., 31 AD2d 941; Parlato v Semmes Motors, 38 AD2d 844; Weigand v Fee Bros. Co., 73 App Div 139; Kepner v Barry, 24 AD2d 825; Yedinak v City of New York, 275 App Div 953.) II. Where the record indicates that a compromise verdict was reached, it is error to order a new trial on damages only. (Mercado v City of New York, 25 AD2d 75; Kane v Bateman, 28 AD2d 814; Ferro v Maline, 31 AD2d 779; Ranieri v Roach, 33 AD2d 865; Hempel v Jenkins, 28 AD2d 1068, 24 NY2d 822; Dorsey v Knickerbocker Hosp., 26 AD2d 541; Meacham v Cornell, 25 AD2d 701; Melanify v Pauls Trucking Co., 27 AD2d 622; Pfeiffer v Empire Merchandising Co., 33 AD2d 565.) III. New evidence as to causality which first appeared at the second trial constitutes grounds for a new trial on the issue of liability.
    
      Norman H. Dachs for respondent.
    I. The award as modified was not excessive. (Milks v Mclver, 264 NY 267; Sauter v N. Y.C. & H. R. R. R. Co., 66 NY 50; Popular v Bourjois, Inc., 298 NY 62; Derby v Prewitt, 12 NY2d 100; Musco v Conte, 22 AD2d 121; Steitz v Gifford, 280 NY 15; Tice v Munn, 94 NY 620; Linden v National City Bank of N. Y., 12 AD2d 69; Leeds v Metropolitan Gaslight Co., 90 NY 26; Owen v RochesterPenfield Bus Co., 304 NY 457.) II. The questions of defendants’ negligence and plaintiff’s freedom from contributory negligence have been conclusively established. (B.R. DeWitt, Inc. v Hall, 19 NY2d 141; Guarino v Mine Safety Appliance Co., 25 NY2d 460; Commissioners of State Ins. Fund v Low, 3 NY2d 590; Schwartz v Public Administrator of County of Bronx, 24 NY2d 65; Kowalski v Mohsenin, 38 AD2d 274.) III. The courts below properly exercised their discretion in limiting the retrial to the issue of damages. In any event, defendants may not relitigate the issue of liability under principles of res judicata and collateral estoppel. (Mercado v City of New York, 25 AD2d 75; Dorsey v Knickerbocker Hosp., 26 AD2d 541; 
      Nemeth v Terminal Cleaning Contrs., 30 AD2d 518; Pfeiffer v Empire Merchandising Co., 33 AD2d 565; Hempel v Jenkins, 28 AD2d 1068, 24 NY2d 822; Ranieri v Roach, 33 AD2d 865; Meacham v Parlett, 25 AD2d 701.) IV. The "new evidence as to causality which first appeared at the second trial” is no ground for the granting of a new trial on liability.
   Fuchsberg, J.

The question presented on this appeal is whether, on setting aside an $18,000 jury verdict for plaintiff, on the ground of inadequacy, in an action for damages arising out of personal injuries, the trial court properly exercised its discretion in ordering a new trial on the issue of damages alone rather than on the issues of both negligence and damages.

Defendants, contending that an entirely new trial was required, argued that the verdict represented an impermissible compromise as to liability as well as damages, but the Appellate Division, Fourth Department, rejected that contention and unanimously sustained the trial court (40 AD2d 954). Upon retrial of the damages issue, this time before a Judge sitting without a jury, plaintiff received an award of $125,000, which, on plaintiff’s appeal, was modified by the Appellate Division, which increased it to $175,000. (44 AD2d 886). Our court having dismissed defendants’ motion for leave to appeal to us from the affirmance of the order granting the second trial on grounds of nonfinality (32 NY2d 686), the judgment entered after the second trial, as modified by the Appellate Division, pursuant to CPLR 5501 (subd [a], par 1), brings up for review the original order granting the new trial.

The judgment should be affirmed for the reasons that follow.

The proof of liability which the original Trial Judge had before him appears to have been considerable. On May 20, 1966, Rocco Figliomeni, then 14 years of age, had already long been a severely handicapped child. Among other things, he had but one eye, his I.Q. was 73 and, as a result of a preexisting pathological condition, the shape of his head in general, and the location of his eye in particular, were in the words of his trial counsel "distorted”, "depressed”, "indented” and "protruberant”. Because of his condition, he was enrolled at one of defendant Board of Education’s schools, in a special class for children with severe problems.

The defendant Joseph Gangemi was a teacher assigned to care for and instruct these children. The physical and athletic activities the children were permitted to engage in consisted merely of skipping, jumping and playing with a small soft ball. Nevertheless, Gangemi, in the course of play with the class, threw a hard baseball to Rocco; the ball apparently struck him on the head. Gangemi had never taken the trouble to read Rocco’s available health card, which would have alerted him to the danger of exposing this child to such a potential source of injury, a fact underlined by the testimony of the school nurse. He conceded that, had he known the contents of the card, he would not have thrown the ball.

Confirmatory testimony as to defendants’ departure from appropriate safety standards also came from Lauren B. Sutherland, a highly-qualified health education expert, as well from the published safety recommendations of the State Education Department. Any serious contest on this issue was dissipated when Genevieve Doud, a teacher called as a witness in behalf of the defendant, testified that she would not have allowed Rocco to engage in a game with a hard baseball, and that it was the duty of teachers assigned to children like Rocco to protect them against themselves. Indeed, just about the only attempt at a liability defense was defendants’ rather feeble reliance on Gangemi’s assertion that, from approximately a hundred feet away, the distance that he had propelled the ball, he could only see that Rocco’s glasses fell from his face and that the ball dropped to the ground from the direction of the boy’s upraised gloved hand. Though Rocco’s own testimony, understandably in the light of his handicaps, was somewhat confused, the only other eyewitness testified that the boy was indeed struck in the head.

At the time of the occurrence, Rocco’s immediate complaints were minimal. After first attending a class, he went home. Because of the onset of drowsiness from which he could not be aroused, he was hospitalized. Among other things, tests performed at that time showed deformation of the arteries in the left frontal area of his brain. Surgical inspection by means of a craniotomy, performed by drilling burr holes through the skull, were reported to have disclosed a splintered, depressed fracture of the frontal bone. In the same area, though, the surgery also revealed fibromatosis, which the patient was known to have had long before the accident and which is characterized by bony and soft tissue tumors. About a month later, it was discovered that the surgical wound had been permitted to become infected. This required further surgery to remove infected bone and left an area through which a part of the brain could be seen pulsating under a covering of skin.

Well over two years later, Rocco experienced the first of a series of episodes which have since turned out to be recurrent epileptic seizures. Before the epilepsy, Rocco had apparently enjoyed a sufficient recovery to enable him even to have taken gainful employment as "a food server or dishwasher”. However, during the later convulsive episodes, on a number of occasions he fell and struck his head, thus sustaining additional injuries. By the time of the second trial, seven years after the accident, his seizures were still unrelieved.

At common law, if a verdict was required to be set aside for inadequacy or excessiveness, a new trial on all issues was ordered (Edie v East India Co., 1 Black W 295, 298, 96 Eng Rep 166, 167; Seventeenth Annual Report of NY Judicial Council, 1954, pp 181, 192-204). In more modern practice, however, and in New York since 1951, it has come to be recognized that, where liability and damages are neither intertwined nor the result of a trade-off of a finding of liability in return for a compromise on damages, the court is empowered to limit the new trial to the issue of damages alone. (CPLR 4404; Pfeifer v Empire Merchandising Co., 33 AD2d 565; Hempel v Jenkins, 28 AD2d 1086, affd, 24 NY2d 822; Mercado v City of New York 25 AD2d 75; see, generally, New Trial as to Damages Only, Ann., 29 ALR2d 1199.)

Here, if the entire catalogue of Rocco’s medical conditions is regarded as causally connected to the incident of the hard ball striking him, it was certainly well within the discretion of the Trial Judge to set aside the $18,000 verdict for inadequacy (Crellin v Van Duzer, 269 App Div 806; Damages—Injury to Head or Neck, Ann., 11 ALR3d 370, 687), and it was for him to determine whether retrial should be on the damages issue alone. But it did not necessarily follow that, because the damages were inadequate, they were the result of an impermissible compromise or, if they were, that the compromise reached the liability issue. It is only when it can be demonstrated that an inadequate verdict could only have resulted from a compromise on the liability issue that the court must revert to the former rule requiring retrial on all issues. As we analyze the case before us, it presents a multiplicity of factors militating against any necessary conclusion that the damages’ inadequacy infected the liability determination.

Parenthetically, it should be noted that this case is not like those where an amount due is fixed and certain, indeed liquidated, as in some contract actions, so that, if a party recovers at all, he must recover the full amount (Friend v Morris D. Fishman, Inc., 302 NY 389). In such cases, a compromise on the question of the underlying breach becomes self-evident. In contrast, it is the rule rather than the exception that, in cases calling for the monetary evaluation of bodily and emotional injuries and the frequently subjective pain and suffering that may flow from them, that a wide and diverse range of opinion is to be expected among triers of the fact, whether Judges or jurors. Of the latter, some may be skeptics, others stoics and still others stoical about the ability of others to endure pain. There are those too who, consciously or unconsciously, react unfavorably to the law’s measurement of such noneconomical injury in terms of dollars and cents. On the other hand, there are those who have opposite, even hypersensitive, views about the plight of injured persons. Obviously, then, whether a jury consists of a preponderance of individuals of the one stripe or the other will make a world of difference in the quantum of damages which it awards.

Interestingly, wise Trial Judges can usually gauge the character of jurors selected for a particular case and are able, with a remarkably high degree of accuracy, to predict how they will vote on specific issues in the case. Nor need confirmation wait until the outcome of the trial. To the alert observer, it often comes from facial expressions, gestures and discernable reactions to testimony long before then. The opportunity to evaluate them is one of the recognized advantages a Trial Judge has over an appellate Judge. Just as, first hand, he has seen and observed the witnesses, their personalities, their hesitancies, their tones of voice, the many other details by which people reveal themselves when under fire, he has also been afforded a similar opportunity to observe the jurors. The Trial Judge here had that opportunity and was in a position to sense whether the liability, which seems, on the record here, so clear, nevertheless appeared to present any difficulty for the jury as the proof of it unfolded in his presence, or whether it was only the damages proof to which the jury was reacting adversely. Such things are properly to be taken into account by a Trial Judge on a motion which calls as much for a judgmental determination as did this one.

Important as such general matters are, the Judge here did not have to limit himself to them. Thus, it could not have been lost on him that the medical picture here was not clean-cut (see De Luca v Wells, 58 Misc 2d 878; cf. Simmons v Fish, 210 Mass 563), but beset by many practical and psychological uncertainties. Rocco’s pre-existing physically and mentally handicapped condition and his grotesque appearance could have been a cause for sympathy, but may also have served to obscure the injuries superimposed by defendant’s negligence, leaving the impression that it had made little practical difference. The complicating infection that appeared only a month after the accident, in some jurors’ minds, may have raised a question as to whether it might have been the hospital’s intervening negligence, rather than that of the Board of Education, which carried the moral burden for the plaintiff’s condition from that point forward. True, the law tells us, and the Trial Judge told the jury, that the liability of an original tort-feasor also encompasses any supervening medical malpractice which may occur in the treatment of the injuries, but it is one thing for a Judge to have so charged and another for him to consider whether damages have been fixed too parsimoniously because the jury was unhappy with the law it heard. All the more may it properly have concerned him in the framework of a situation where the 12 citizen-taxpayers on the jury had to bring in the verdict against their own local school board of education and a member of its teaching staff.

Also open to serious question was the attribution of the epilepsy to the accident. The first episode occurred after a lapse of nearly two and a half years. Plaintiff’s problems after that were attributable to it. The question as to whether it was of traumatic origin, therefore, had to be central to the damages issue. The epilepsy had not come on belatedly to a boy who had enjoyed good health before the accident, but to one who had been suffering, since long before the accident, from a condition that was causing a proliferation of cranial bony and soft tissue tumors. This was just the sort of issue on which laymen might substitute their "common sense” for an opinion expressed by plaintiff’s expert years after the event and in response to a hypothetical question. Defendants bolstered that view by more than argument. Their own medical expert suggested the convulsions need not have been traumatically induced at all. Whatever may have been the impression on the Judge, it was for the jury to make the initial decision.

On top of all this there existed the question of whether Rocco’s condition, even as first diagnosed at the hospital after the accident, was causally connected to the accident at all. It is interesting to note, since we now have the benefit of the records of both trials, that, at the second one, defendants’ medical examiner, who had not been available at the first trial, testified that the X rays taken before the original craniotomy showed no fracture and that the reported fractures of the skull were the result rather than the cause of the craniotomy burr hole drilling. But we need not confine ourselves to hindsight on this matter. The Trial Judge had recognized the existence of this problem phase of the damages issue well before there was a verdict, for he charged the jury that an "issue in the case is whether or not the injury which Rocco suffered was the result of this accident on May 20, 1966.” Can it then be denied that there is sound basis for the view that, if anything troubled the jury, it was not the question of defendants’ liability, but rather the extent to which it was the competent producing cause of the plaintiff’s condition.

That any compromising, if any took place, was only on the damages phase of the trial is also borne out by the fact that, in the father’s companion case for loss of services and medical expenses, the same jury awarded him $20,000, which was somewhat in excess of the full amount of the expenses he had incurred. On the other hand, the verdict in Rocco’s case, save for a small percentage of it which it was possible to attribute to loss of earnings, in effect was for general damages. The authorities make that clearly distinguishable from cases in which serious injuries go totally uncompensated save for relatively small, undisputed special damages. (Bradford v Edmands, 215 Cal App 2d 159, 167; see Brown v Richard H. Wacholz, Inc., 467 F2d 18; De Luca v Wells, 58 Misc 2d 878, 879, supra; Tort—Separate Trial of Issues, Ann., 85 ALR2d 9, 49; New Trial as to Damages Only, Ann., 29 ALR2d 1199; cf. Blackwelder v Service Liq. Distrs. of Cent. N. Y., 36 AD2d 678.) Further, projected damages for the cost of nursing care were not only conjectural, but ran counter to the history of the case. In seven years neither Rocco nor his parents had actually incurred any expense on that account at all.

Under these circumstances, we cannot say as a matter of law that either the Trial Judge, in deciding to set aside the verdict for inadequacy, or the Appellate Division, in affirming that exercise of discretion, abused their discretion in limiting the second trial to the issue of damages alone. The original verdict, as the record reveals, was consistent with the rationale of a principled and deliberate, though inadequate, view on damages and certainly does not represent the kind of relinquishment of a conscientious conviction by some jurors on the issue of liability in return for relinquishment of such convictions by others on the issue of damages that mandates a new trial of all the issues. (4 Weinstein-Korn-Miller, NY Civ Prac, par 4404.23, p 44-69; see, also, 8 Carmody-Wait, 2d, NY Practice, § 58:8; Honigsberg v New York City Tr. Auth., 43 Misc 2d 1, 3-5.)

It should be said that the afore-mentioned considerations are, of course, directed towards this case as it was presented at the initial trial. In the second trial, limited to damages, the parties waived a jury. On the basis of the new record made there, the Appellate Division had the power to modify the judgment. (CPLR 5522.) We find no reason to disturb the modification.

Accordingly, the order appealed from should be affirmed in all respects.

Cooke, J.

(dissenting). I dissent and vote to reverse and order a new trial on the issues of both negligence and damages.

Carried to its logical conclusion, an affirmance here is indicative of the elimination of the concept of compromise verdicts in all cases, save those in which liquidated damages and fixed sums which may be calculated are demanded.

Generally speaking, since a verdict must be the product of a deliberate exercise of the jurors’ judgments (Hamilton v Ow-ego Water Works, 22 App Div 573, 575, affd 163 NY 562), a verdict which is clearly the result of a compromise and unwarranted by the evidence will not be permitted to stand (Friend v Morris D. Fishman, Inc., 302 NY 389, 390; 4 Weinstein-Korn-Miller, NY Civ Prac, par 4402.23). Of course, in those matters where the amount demanded is unliquidated or where the amount to be recovered is not a fixed sum which may be derived by mathematical computation, a verdict should not be disturbed merely because of a reconciliation of differences of opinion among the individual jurors on the question of the damages (Newburgh Transfer & Stor. Co. v Pure Oil Co., 259 App Div 910, affd 284 NY 293; McCormick v Rochester Ry. Co., 133 App Div 760, affd 198 NY 510; Hamilton v Owego Water Works, 22 App Div 573, 578, affd 163 NY 562, supra), but one which evolves from a compromise, not merely as to amount but as to liability as well, will be overturned (Parlato v Semmes Motors, 38 AD2d 844; Black-welder v Service Liq. Distrs. of Cent. N. Y., 36 AD2d 678; Lallo v Grant Co., 31 AD2d 941; Milliken v City of New York, 82 App Div 471; 8 Carmody-Wait, 2d, NY Practice, § 58.8).

This action was instituted to recover $450,000 for personal injuries sustained as the result of an incident which took place on May 20, 1966 when Rocco Figliomeni, then 14 and a special class student at the Eastwood Junior High School in the City of Syracuse, allegedly was struck on the head by a baseball thrown to him by his teacher, Joseph Gangemi, in the course of schooling. A companion action was commenced by the student’s father, Frank Figliomeni, who asserted a derivative cause with a demand for $75,000 for hospital and medical expenses, care of the son, and loss of services. The actions were tried together in October of 1971 and resulted in a verdict of $18,000 for the son and $20,000 for the father.

There was a sharp issue as to liability, as to whether appellants were responsible regardless of injuries, insofar as the teacher, Gangemi, testified that the thrown baseball hit Rocco’s glove and then went to the ground. He further related that, when one of the boys said Rocco broke or dropped his glasses, Gangemi asked if everything was all right and Rocco responded "Yes, okay.”

On the other hand, the injuries claimed on trial were severe, indeed. A surgeon who examined the boy on May 21, 1966 found him deeply unconscious with raised intracranial pressure and a right hemiparesis. A left caratoid angiogram was performed which showed that the arteries around the left frontal lobe were deformed by the swelling of the frontal part of the brain. An exploratory craniotomy was resorted to, during which a bruising over the membrane of the frontal bone and a comminuted depressed fracture of the left frontal bone were found. The bone fragments of the fractured area were removed, the brain was found to be very swollen and, upon opening the dura over the brain, there was discovered a large amount of bruising of the frontal lobe with hemorrhage beneath the thin membrane surrounding the brain. More bone was removed to reduce the increased pressure in the head. Blood beneath the scalp flap was aspirated on several occasions. Infection developed and right hemiparesis progressed, and, in June, the incision was reopened and an additional amount of bone and the remainder of the bone flap were removed, leaving a huge area over the frontal temple lobes unprotected by any part of the skull or other material. In 1967, a plastic plate was inserted to cover the defect in the skull on the left side of the site of the original injury.

Following different seizures, during one of which Rocco fell and struck his head, he was admitted to a hospital in August of 1968 where he was again found to be deeply unconscious, in a very serious condition with increasing intracranial pressure and paralysis down the right side of the body. A left caratoid angiogram showed there was swelling of the right frontal lobe and, upon another exploratory craniotomy, a swollen edematous frontal lobe was found. After that operation, there was eventual regression and a pneumoencephalogram was done, which showed a shift of ventricles from the left to the right side of the head so that there was pressure on the left part of the brain. Again, there was surgery, during the course of which a large clot was found pressing on the hemisphere in the parietal region.

There was proof that at the time of trial the infant plaintiff had suffered and was suffering from posttraumatic epilepsy, with both Grand Mal and adversive seizures, as a direct result of the May, 1966 head injury, for which dosages of Delantin and phenobarbital were prescribed. The depressed fracture and subarachnoid hemorrhage were causally related. Although it was stated that these conditions would not limit life expectancy, the prognosis was that there would be frequent seizures which would be difficult to control and that Rocco would require prolonged medical attention the rest of his life, together with the necessity of living with his family or someone else for his lifespan.

Hospital bills of $13,955, surgeons’ fees of $3,146, anesthetist’s charges of $308 and ambulance bills of $46, for a total of $17,455, were stipulated. The jury was charged that Rocco’s claimed lost wages amounted to $4,587.20, to be added to his recovery if a verdict was awarded to him and if it was found that these wages were reasonable and lost. It was also charged that his life expectancy at the time of trial was 52 years and that the rate of hire of an orderly or attendant was $28 per day, which should be taken into consideration, if the jury arrived at that point.

There is presented here the classic example of a compromise verdict. The amount awarded the infant son, by a 10 to 2 vote, was less than that granted the father on the derivative cause of action, the son’s award being approximately the amount of the medical specials (cf. Parlato v Semmes Motors, supra; Miller v Barker, Rose & Clinton Co., 173 App Div 186). If this plaintiff was entitled to recover at all, it was in an amount greatly in excess of that reported by the jury. In view of plaintiff’s life expectancy, the nature and extent of the skull and brain injuries, the extraordinary surgical procedures performed, the tragic residuals and their permanency, the court’s charge as to loss of earnings ($4,587.20) as being a part of the son’s recovery and to which instruction no exception was taken, and the plaintiff’s own right to recover for future, prospective and contingent expenses (Clarke v Eighth Ave. R. R. Co., 238 NY 246, 250-251), one must arrive at the inescapable conclusion of a compromise, such as was suggested in Wiegand v Fee Bros. Co. (73 App Div 139), where it appeared that "the rights of the defendant were bargained away upon the main issue whether it was negligent or not, in consideration of an understanding that it should not be beaten in too large an amount” (p 142). Parenthetically, the award which respondent asks this court to affirm is approximately 10 times greater than that of the jury which determined negligence.

Chief Judge Breitel and Judges Gabrielli and Wachtler concur with Judge Fuchsberg; Judge Cooke dissents and votes to reverse in a separate opinion in which Judges Jasen and Jones concur.

Order affirmed, with costs. 
      
       The Trial Judge did not disturb that verdict and the judgment entered thereon was affirmed on appeal.
     