Award In NY Personal Injury Cases Can’t Be Tied To Ethnicity, Judge Rules

They say that justice is blind, but anyone who believes that is truly blind. Examples of inherent bias in our judicial system abound. For example, blacks get the death penalty and heavy sentences far more often than whites for the same crimes. Poor people – who can’t afford a “dream team” of lawyers and instead rely on assigned counsel — have far less success in court than their wealthier “lawyered up” counterparts.

And unfairness does not plague just our criminal justice system. Our civil justice system is also contaminated with it. Although statistics are not available locally, it is common belief among the local bar in Central New York that if you are black, poor, excessively overweight or just plain ugly, you are likely to get a smaller money award in your New York personal injury or medical malpractice case than if you are white, well-off, thin and good-looking. That’s why most competent personal injury trial lawyers will talk to a jury – in the jury selection process – about these prejudices, and try to weed out of the jurors who are more likely affected by them.

Like it or not, judges and juries are just regular people with regular prejudices. But courts – and your lawyer – nevertheless have a duty to try to combat them – to even out the scales of justice. A recent case illustrates this.

In the case, a small child ingested dangerous amounts of lead paint that was chipping and peeling off the walls in the apartment his parents – obviously poor – were renting from the defendant landlord. The child ended up severely brain damaged, which virtually assured him of a future in very low income jobs. His brain was too deteriorated to obtain higher education. Even graduating from high school was going to be a challenge. His future? MacDonald’s or Burger King, take your pick.

The jury held the landlord liable for not remedying the pealing/chipping lead paint condition. The jury awarded the child $2 million for lost future income. The jury found that – but for the lead paint – the child would likely have carved out a better future than just serving up fast food fries.

But the landlord sought to reduce the verdict because the kid was Hispanic. He argued that Hispanics statistically earn less than whites and thus the child was likely going to end up at the bottom economically anyway – even if he had not suffered brain damage from lead paint. He even tried to get an expert to testify that this was so.

The judge decided that statistics based on the ethnicity (in this case, ‘Hispanic’) of a child cannot be relied upon to reduce damages in a tort case. Instead, the jury must look only at the child’s family and environmental situation without regard to his race: Are his parents well educated? Are they intelligent? What kind of jobs do they have? How was the child doing in school before he started experiencing the effects of lead poisoning? All these are legitimate factors to consider. But arguing that the boy was likely to earn less because he was Hispanic was found to violate the Constitution’s equal protection and due process clauses.

Strike one up for blind justice, at least in my view . . . ..

Keep safe!

Mike Bersani

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Michael G. Bersani, Esq.
Central NY Personal Injury Lawyers
Michaels Bersani Kalabanka


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