The instant appeal provides us with an occasion to discuss in detail the “reasonable certainty” evidentiary standard of CPLR 4545 (c) that governs collateral source hearings, as decisional authority on the subject is sparse.
During the early morning hours of a rainy January 13, 1995, the plaintiff MK was riding in the front passenger seat of a vehicle owned and operated by the defendant KOP. As KOP proceeded along Quaker Meeting House Road in Farmingdale at approximately 30 miles per hour, the car hydroplaned off the road and crashed into a tree, causing MK to sustain fractures to her ankle and C2 vertebra. Subsequently, MK commenced this action against KOP, as well as the defendant County of Nassau, alleging as the bases for recovery KOP’s negligent operation of the vehicle and the County’s negligent road design. Prior to trial, in an order dated August 26, 2004, the Supreme Court determined that the County was collaterally estopped from arguing that the road was not negligently designed based upon prior decisions of this Court in Furino v County of Nassau and Zawacki v County of Nassau. After a trial on the issue of liability, the jury found, on October 21, 2004, that the negligence of both KOP and the County were substantial factors contributing to the accident’s occurrence, and apportioned 13% of fault to KOP and 87% of fault to the County.
At the trial on damages, evidence was presented that after the accident, MK was transported to a hospital where her ankle was casted and her neck stabilized with a “halo device,” the fixation of which was very painful. The following two months, MK relied on the care of her future husband’s family, who assisted her with her personal needs such as bathing and using the bathroom. During that time, she relied on a wheelchair to ambulate before graduating to a walker. Subsequently, the fractures to her ankle and C2 vertebra healed, and MK was able to return to college, graduate, and obtain a job. However, the pain in her neck persisted, and she also experienced occipital headaches and numbness around her face and neck, which she attempted to treat with medications such as Vicodin and Soma. She saw a chiropractor and acupuncturist, but found no relief. After seeing a spine specialist, MK opted for spinal fusion surgery, which involved removing the disc between the C2/C3 vertebrae and replacing it with bone from her hip. However, the surgery only worsened her condition. MK then began seeing a pain management specialist who treated her pain with epidural steroid injections, cortisone shots, physical therapy, cervical rhizotomies, and a combination of narcotics, analgesics, and muscle relaxants.