On July 1, 2000, 60 year old Steven Motelson lost control of his 1998 Ford Explorer sport utility vehicle on Route 17 in Goshen. It rolled over nearly four times and landed on the driver’s side. The roof of the car collapsed onto Steven’s head and caused his death at the scene.
Steven’s 36 year old adult son, Gary Motelson, sitting in the front passenger seat, ended up physically uninjured in any significant way but, after the car rolled over, Gary ended up suspended by his seat belt, hanging above his father.
In the rear of the vehicle were Gary’s sons Brian and Evan. Both were ejected. Evan (five years old) sustained minor physical injuries but devastating psychological injuries. Nine year old Brian Motelson, died the next day.
In their ensuing lawsuit, the Motelsons alleged that the crash was caused solely by Ford’s defective designs as to:
- the rear seat belt system (causing the ejection of the boys),
- the roof (because its structure was too weak and not capable of sustaining a rollover without crushing, which caused Steven’s death), and
- the cable on the speed control system (causing the vehicle to experience a sudden unintended acceleration).
Ford contended that the accident was caused by Steven’s negligent driving and that the car was not defectively designed in any manner.
After a month long trial in Richmond County in March 2008, the jury found that Steven was not at all at fault but they rejected plaintiffs’ sudden acceleration and defective rear seat belt claims and upheld only the roof design defect claim. The effect of those findings was that the jury awarded damages only for Steven’s estate – in the sum $6,500,000 ($1,500,000 for loss of earnings to his wife plus $5,000,000 for the economic loss to his wife and children).
The jury found that both boys in the rear – Evan and Brian – were not wearing their seat belts and therefore made no award at all with respect to either of them.
Similarly, the jury made no award at all to Gary because he was physically uninjured, walking away from the crash with only a bruised collarbone. He was wearing his seat belt.
In a decision dated March 26, 2009, the trial judge ruled upon post-trial motions:
- declining to set aside the liability determination against Ford
- reducing the $6,500,000 in economic damages to $5,000,000 ($1,327,000 for loss of earnings, in accordance with the testimony of plaintiffs’ expert economist Conrad Berenson plus $3,673,000 for other pecuniary damages related to Steven’s death such as the anticipated increased value of a real estate business he was expanding and the support he would have given to his heirs) and
- awarding zone of danger extreme emotional distress damages to Gary in the sum of $3,189,055 and to Evan in the sum of $5,457,900 (both underwent substantial psychiatric treatment after the crash and experts testified as to their lifetime need for, and huge costs of, treatment and medication)
Ford appealed and in Motelson v. Ford Motor Co. (2d Dept. 2012) the liability finding against it was again upheld; however, the appellate court reversed and dismissed the trial judge’s zone of danger awards declaring that the issue had not been submitted to the jury.
Also, the appellate court further reduced the economic damages awarded to Steven Motelson’s widow – from $3,673,000 to $674,599 ($500,000 for loss of inheritance plus $174,599, the amount testified to by plaintiffs’ expert economist as the “household services” loss).
As set forth in the seminal case of Bovsun v Sanperi (Court of Appeals 1984), zone of danger damages are recoverable in New York only where a plaintiff: (1) observes a serious injury or death of an immediate family member in his presence that is caused by the defendant’s conduct; (2) plaintiff is contemporaneously threatened with bodily harm from the same conduct; and, (3) the observation is the cause of plaintiff’s serious emotional disturbance.
On October 22, 2013, New York’s highest court agreed to hear the appeals of Gary and Evan Motelson as to the dismissal of their zone of danger awards; however, on November 18, 2014, the Court of Appeals affirmed the Appellate Division’s order. The high court noted that the issue of whether Gary and Evan sustained emotional distress injuries due to being placed in the zone of danger was not argued to the jury, addressed in the trial judge’s charge or submitted to the jury on the extensive verdict sheet.
The damages awards in this case now total $2,001,599 (before interest) as follows:
- $1,327,000 – loss of earnings
- $ 500,000 – loss of inheritance
- $ 174,599 – loss of household services
- There was a third rear seat passenger – 21 year old family friend Mitchell Slepian. He sustained a traumatic brain injury resulting in permanent cognitive deficits, a right orbital fracture requiring surgical repair including insertion of an implant, several rib fractures, two fractured vertebrae, a fractured finger and permanent scarring. On June 19, 2007, before trial, Slepian settled his case against Ford for $1,750,000.
- Historically, zone of danger damages have been allowed only with respect to parents, children and spouses; grandparents were never held to be immediate family members. The parties briefed this issue (with respect to Evan) but it was not ruled upon because the zone of danger claims were dismissed on other grounds.