New York Injury Cases Blog
Appellate Court Rules that Jurors Erred in Finding No Pre-Death Pain and Suffering in Bus Accident
On June 18, 2005, Luisa Sanchez was walking across 163rd Street in the Bronx when the 28 year old woman was struck by a city sanitation truck.
Ms. Sanchez was found by the truck driver lying in the street behind his truck. She was bleeding from her ears, nose and the back of her head and she was uncommunicative. She'd sustained blunt trauma to her head resulting in a subdural hematoma and brain contusions.
Several emergency surgical procedures were performed to try to relieve the intracranial brain pressure but Ms. Sanchez lapsed into a coma from which she never emerged and died from her injuries 10 months later after several bouts of pneumonia and the onset of sepsis (severe infections).
A lawsuit was brought by the decedent's mother on behalf of Ms. Sanchez's five year old daughter seeking damages for pre-death pain and suffering, loss of parental guidance and other economic losses.
The city claimed that its driver was not negligent because Sanchez crossed in the middle of the street and there were two posted signs at the site prohibiting pedestrians from crossing.
On February 11, 2010, a jury determined that both parties were negligent (the city driver 30%, Sanchez 70%) and assessed $870,000 in damages (before apportionment) as follows:
- $245,000 past medical expenses (agreed to by both sides)
- $150,000 for future lost earnings (13 years)
- $325,000 for loss of parental guidance (13 years) and
- $150,000 for loss of household services (13 years)
Plaintiff successfully appealed the refusal to award any pain and suffering damages arguing that there was evidence (from first responders at the scene) that, for at least 10 minutes, Ms. Sanchez was somewhat conscious and experienced pain.
In Sanchez v. City of New York (1st Dept. 2012), the appeals court held that Ms. Sanchez "showed some signs of consciousness, if not awareness" and experienced "some level of pain and suffering during her interludes of consciousness." This was enough to require an award for pre-death pain and suffering and the judges determined that $400,000 is the minimum acceptable amount under the facts of this case.
The appellate court also addressed additional elements of damages as follows:
- affirmed the $325,000 loss of parental guidance award (on appeal, plaintiff had argued for an increase to $1,500,000)
- increased the lost earnings award to include $77,000 for the period before death
- increased the future loss of household services award from $150,000 to $300,000
Parental guidance damages are meant to compensate a child for the economic loss of a parent's nurture and care as well as the physical, mental and intellectual training by a parent. Under New York law, damages are not recoverable for a child's sorrow, mental anguish or loss of parental companionship.
The award for loss of household services, in this case, is intended to compensate Ms. Sanchez's daughter for the value of her mother's services (such as laundry, cooking, cleaning and shopping). Plaintiff's expert economist, Alan Leiken, Ph.D., testified that the value of such services through the daughter's 21st birthday, would be $345,000.
The total award as modified by the appellate court now stands, before apportionment, at $1,496,000 (an increase of $626,000); however, because of the 70/30 liability split, plaintiff's actual recovery will be $449,000.
- Plaintiff's attorney conceded that the decedent was negligent. In his closing argument, counsel stated that the jurors would be correct in assigning 15% of the fault to plaintiff.
- Defense counsel suggested to the jury that if they found any liability on defendant's part then $75,000 would be appropriate for pre-death pain and suffering. Plaintiff's attorney asked for $750,000.
- Plaintiff asked the jury for $2,000,000 for loss of parental guidance while defense counsel suggested $150,000.
- During trial, plaintiff rejected a settlement offer of $500,000.