$45.2 Million Verdict for Philanthropist Brain-Damaged When Boys Threw a Shopping Cart From a Mall

On the evening of October 30, 2011, Marion Hedges was at East River Plaza mall in East Harlem buying Halloween candy for underprivileged children when two 12-year-olds hurled a metal Target shopping cart from a fourth-floor walkway. The cart fell roughly 79 feet and struck her in the head. Paramedics placed her in a medically-induced coma. Physicians said she came close to dying.

Hedges, a 48-year-old Upper West Side real estate broker with a history of charitable work, emerged from the coma with permanent organic brain damage. She was left with cognitive deficits, extreme sensitivity to light and noise, an inability to cry, difficulty managing routine daily tasks, and a loss of physical intimacy. Her recovery required extensive ongoing care.

Thomas Moore of Kramer Dillof Livingston and Moore brought suit against East River Plaza mall ownership and Planned Security Services, the private security company responsible for the property. At trial, Moore presented evidence that security footage and communications from around the time of the incident were missing, and showed that mall management had prior notice that young people were congregating on the elevated walkways and throwing objects from them. The jury was asked to weigh whether the property owners and their security contractor had done enough to prevent the foreseeable risk of projectiles falling onto shoppers below.

After a month-long trial, the jury deliberated for less than four hours. On June 15, 2018, it returned a verdict of $45.2 million: $40.7 million for Hedges herself, covering past and future pain and suffering, lost earnings, and the future cost of a home aide; $2.5 million for her son; and $2 million for her husband for loss of consortium. The jury apportioned fault at 65% to the mall ownership group, 25% to Planned Security, and 10% to the two boys.

Defendants appealed. The Appellate Division, First Department heard argument in November 2020 and issued its decision on January 12, 2021. The court upheld the liability apportionment and affirmed the core structure of the damages, but the future pain and suffering component was reduced to $10 million following a plaintiff stipulation, bringing the total sustained award to approximately $22.275 million. The First Department noted that the combined $13 million in past and future pain and suffering for Hedges ranked among the highest amounts ever sustained by that court. Matthew Gaier of Kramer Dillof Livingston and Moore argued the appeal.