Fall in IRS Office Results in $712,000 Award

A recent Eastern District of New York decision, Berroyer v. U.S., illustrates that paying taxes can be literally painful.

Plaintiff and his wife sued the United States of America under the Federal Tort Claims Act, 28 U.S.C. § 1346(b), seeking recovery for injuries sustained during a meeting with an IRS auditor. Plaintiff was injured when “his foot became caught in a long telephone utility cord which was under the table, which caused him to fall into a filing cabinet and consequently suffer serious injuries.” Defendant argued, among other things, that plaintiff was “faking” his injuries.

As to liability, the court held that defendant was indeed negligent:

It is undisputed that Richard Enterlin [the IRS auditor present in the meeting in which plaintiff was injured] was an employee of the federal government. It is also undisputed that the IRS, an agency of the federal government had the duty and obligation to maintain the conference room in the IRS building in 1180 Veterans Memorial Highway in Hauppauge in a room designated by the IRS as Room 323, in a reasonably safe condition. Also, there is no doubt that the IRS had the duty to ensure that there are no hidden traps on the floor under the conference room table. Further, the Court finds that an unseen loose telephone cord under the table constituted a potential danger to an unaware person sitting at the table. Thus, the Court finds that the failure to remove the potential trap or, at the least, to tape the telephone cord to the floor, constitutes negligence on the part of the IRS and the United States.

Therefore, the defendant, the United States of America is liable for the injuries sustained by the plaintiff William Berroyer, Sr., and the loss of services of the plaintiff Ruth Berroyer. Also, the Court finds that there was no contributory negligence on the part of the plaintiff William Berroyer, Sr.

As to damages, the court assessed plaintiff’s entitlement to damages for past and future pain and suffering, past medical expenses, past and future lost earnings, and loss of services/consortium.

Past Pain & Suffering:  $350,000

The court awarded plaintiff $350,000 for past pain and suffering, from July 13, 2008 to the present.

It concluded:

[T]he Court finds that prior to the accident of July 23, 2008, the plaintiff William Berroyer, Sr., suffered from unrelated prior multi-level degenerative disc disease in the spine. The Court further finds that as a result of the telephone wire incident of July 23, 2008, the plaintiff sustained a mild spinal cord injury due to a concussion of the spinal cord. This injury was a competent providing cause of pain and disability in walking for some period of time. The Court further finds, that the plaintiff failed to prove, by a preponderance of the evidence, that he cannot walk and must use a wheelchair to ambulate. The video in evidence indicates that he can walk with a cane and, perhaps, without such an aid.

In sum, the Court finds that the plaintiff William Berroyer, Sr., sustained a mild spinal cord injury which has caused pain and some disability to the present date.

In addition, as to the use of a wheelchair, the Court finds that the plaintiff failed to prove, by a preponderance of the evidence, that his injury has caused alleged paraparesis and inability to walk and consequently full time use of a wheelchair. The plaintiff identified at least six treating physicians, and yet, the plaintiff only called one, Dr. Michael Rubin, whose treatment consisted of only two visits, four and one-half years apart. The Court notes that the plaintiffs failed to call Dr. John Franco, Berroyer’s treating physician for twenty-five years. In a lawsuit of this kind, where the plaintiff contends that he is permanently confined to a wheelchair and cannot work, only one treating doctor was called and he saw the plaintiff only two times and diagnosed a mild contusion of the spinal cord with no structural damage to the spinal cord.

Future Pain & Suffering (15 Years):  $250,000

The court awarded $250,000 for future pain and suffering (over 15 years), despite plaintiff’s failure to demonstrate that he cannot walk without the use of a wheelchair. It found that “plaintiff has established that he will have some pain and difficulty in walking, in the future” and cited record evidence of “plaintiff’s prior back conditions and the final diagnosis of a mild spinal cord injury”.

Lost Earnings:  $0

The court, however, declined to make any award for loss of earnings, since “plaintiff failed to prove that he sustained an injury that would prevent him from working” and “the testimony of the plaintiff’s expert as to loss of earnings was confusing, contradictory and not credible.”

The law states that “loss of earnings claims must be ascertainable with a reasonable degree of certainty and may not be based on conjecture” and “a claim for lack of earnings must be established with reasonable certainty.”

The court explained:

Initially, with regard to the loss of earnings claim, the Court notes that there was no medical expert opinion that the plaintiff could not work until the date of this trial, or that he could not work in the future. None of the doctors called by the plaintiff testified that, as a result of this injury, he was unable to work—either in the past or in the future. The plaintiff’s employment with Best–Temp Mechanical Corp. at the time of this occurrence did not involve physical work. The plaintiff testified that he was involved in estimating jobs and getting new business. There is no evidence in this record that the plaintiff could not do any work in his own business.

A claim for past and future loss of earnings of this kind, especially in a family-owned business, requires medical testimony connecting the plaintiff’s injuries to the inability to work. No medical expert testified that he could not continue to work for Best–Temp, even in a wheelchair. Nor did any medical expert testify that he could not work for Best–Temp in the future. In addition, the Court is concerned with the plaintiff’s credibility problem, referring to his deposition denial of any prior back condition. This was a family operation and some cooperation as to his working ability and hours, would be expected.

Loss of Services/Consortium:  $100,000 (Past), $50,000 (Future)

Finally, as to loss of services, the court explained:

The concept of loss of service is designed to compensate for the injury to the marital relationship and to the interest of his injured party and spouse in the continuance of a healthy and happy marital life. … An award for loss of services or consortium, as it is sometimes called, may include components for both the past and the future.

It awarded damages for past and future loss of services of $100,000 and $50,000 (respectively) to Mr. Berroyer’s wife.  This was based on evidence that her husband’s injury “injury to her husband has affected their sex life and they are frustrated and tired, and only engage in sexual activities one time a month.”

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