DECISION: $6.6 million, reduced to $5.3 million for 20 percent comparative negligence of the plaintiff

Man-Kit Lei v. The City University of New York

Feb. 18

Court of Claims

JUDGE: Alan C. Mann

ATTORNEYS: Gerald C. Barton and Michael J. Hurwitz, of Barton, Barton & Plotkin, New York, for plaintiff:
Gail Pierce-Siponen, Assistant Attorney General, New York, and Leslie A. Stroth, Assistant Attorney General, Buffalo. for defense.

FACTS: On March 4, 1998, Man-Kit Lci, 23, a college student, was severely burned while working with an oxy-acetylene torch in a studio at Brooklyn College. Mr. Lei was using the torch on a sculpture he was creating when sparks flew onto his shirt; he was not wearing a leather apron. Observers said he was quickly engulfed in flames.

At the liability trial, Mr. Lci testified that the lab was so cluttered that there was not sufficient room for him to extinguish the fire by means of a drop-and-roll maneuver. Thus, he ran into the hallway, where a supervisor used a fire extinguisher to put out the flames.

Mr. Lei called a safety expert who testified that the goggles Mr. Lci had been wearing had tinted lenses that prevented the user from seeing sparks that might contact his body. Mr. Lei, therefore, contended that he should not have been left alone in the room.

In November 2002, Judge Alan Marin rendered a claimant's decision, but assigned 20 percent comparative negligence to Mr. Lei. The court based the comparative negligence on the claimant's failure to notify the defendant of procedural violations within the lab. This trial addressed damages.

INJURIES: Dr. Harvey Himel, Mr. Lei's plastic surgeon and critical care specialist, testified that Mr. Lei's burns, which were mostly on his trunk, head, neck, and upper limbs, constituted 22 percent of his total body surface. In addition, his hands were burned. Dr. Himel testified that Mr. Lei's burns were principally second-and third-degree burns. Mr. Lci had a total of seven operations. He had a fingertip amputated.

Mr. Lei has a persistent limitation of range of motion in his neck because of scarring on the front of the neck and tightness of the skin. An occupational/hand therapist found a loss of range of motion on all of the fingers of the left hand and loss of grip strength. The therapist noted a loss of range of motion in the little finger of his right hand. She testified that Mr. Lei was independently able to take care of himself.

Dr. Himel testified that all of Mr. Lei's scarring is permanent, as are the pain, itching, and sensitivity to cold, heat and humidity. Dr. Himel recommended that Mr. Lei undergo further surgeries on his neck and left hand. Two psychiatrists agreed Mr. Lei suffers from post-traumatic stress disorder and major depression as a result of the accident. Mr. Lei's psychiatrists describe his psychological state post-accident as permanent.

The defense called a psychiatrist, Dr. Paul Nassar, who expressed the opinion that although Mr. Lei had elements of post-traumatic stress disorder in the first few months following the accident, he did not have complete post-traumatic stress disorder. Dr. Nassar noted that a patient with such a condition would develop fear of stimuli resembling that which caused the original trauma. He pointed out that Mr. Lci returned to the sculpture lab in which he was burned and finished the sculpture, using the oxy-acetylene torch. Mr. Lei completed a second sculpture in 2001 in the same lab. with the same kind of torch.

Dr. Nassar diagnosed Mr. Lei with adjustment disorder with depressive mood. He explained that adjustment disorder is a condition in which the individual develops psychiatric symptomatology due to a changed circumstance, such as a physical disability brought on by an accident. Dr. Nassar did not contest that Mr. Lei's psychological problems would he permanent. He agreed that Mr. Lei, while withdrawn, did not have these problems prior to March 4, 1998.

In June 2002, Mr. Lei began working as a security guard at Bellevue Hospital, which required only a high school diploma.

Judge Marin found Mr. Lei's past lost wages, for the three years he did not work between his expected graduation date and the trial, were $79,000. He also calculated future lost wages - or the difference between what he would have earned had he entered the art sector and advanced to the average earnings potential in the 32 remaining years of his work life and what he earned working in high-school-graduate-level jobs at $850.920.