On June 29, 2005, Concetta Russo-Carriero, a 56 year old paralegal, was abducted, stabbed twice with a knife and murdered in the parking garage of a White Plains shopping mall.
The perpetrator, 43 year old Phillip Grant, was a convicted rapist who’d already spent 25 years in prison. He specifically selected the garage to commit his crime because of its lax security and spent two hours there lurking around and looking for someone whose car he could hijack and drive to Connecticut.
In 2007, Ms. Russo-Carriero’s executors commenced a wrongful death lawsuit against the City of White Plains (the owner and operator of the garage).
Following the trial in 2014, the Westchester County jurors determined that the city was at fault finding that (a) the incident was foreseeable, (b) the city failed to provide minimal precautionary measures to secure the garage, and, (c) the city’s negligence was a substantial factor in causing the death.
The jury also found that the criminal conduct of the murderer (who was caught quickly, confessed, convicted and sent to jail for 25 years to life) was not a substantial factor in causing Ms. Russo-Carriero’s death. Here is the jury charge in which the trial judge explained to the jurors the foreseeability of criminal conduct, lack of security and apportionment of fault issues.
Pain and suffering damages, as set forth in the verdict sheet, were assessed as follows:
- from the moment Ms. Russo-Carriero realized she was going to be gravely injured or die and the moment she sustained a physical injury – $1,000,000
- from the moment of physical injury to the moment of death – $500,000
The defendant appealed arguing that the case should have been dismissed on the basis of governmental immunity because its implementation of security measures at the garage involved the discretionary allocation of police resources. Furthermore, the city argued that it did not breach its duty to provide adequate security. Finally, the city argued that the jury was wrong in failing to assign any portion of the fault to the perpetrator of the attack (who was not named as a defendant in the civil suit) and that there was no evidentiary basis for the award of $500,000 for conscious pain and suffering (for the period after the stabbing).
In Granata v. City of White Plains (2d Dept. 2018), the appellate court rejected all of defendant’s arguments except the one regarding apportionment of fault (which it modified – assigning 35% to the murderer, reducing defendant’s share to 65%).
In affirming the $500,000 award for the pain and suffering Ms. Russo-Carriero sustained after she was stabbed, the court stated that there was enough circumstantial evidence that she experienced some level of cognitive awareness after the stabbing. Here are the physical injury details:
- a witness heard terrified screams
- decedent’s belongings were strewn about indicating a struggle after she was stabbed
- there was blood on the ground far enough away from the location of the stabbing indicating that she was stabbed in one place in the garage and then engaged in a struggle before ultimately dying in a different location in the garage
- a passerby found Ms. Russo-Carriero on the ground bleeding and he saw her eyes moving
- a police officer testified that Ms. Carriero had a pulse and was breathing as she lay dying on the garage floor and that her lips moved in response to his attempt to question her about what happened
The pre-injury pain and suffering award of $1,000,000 was not challenged as there was evidence (from the perpetrator’s confession) that Ms. Russo-Carreiro was slowly walked at knife-point for about 260 feet in the garage and that she initially knocked the knife away prior to being stabbed.
- The jury also awarded wrongful death damages to decedent’s husband ($155,000) and her two children ($310,000).
- The murderer confessed to police that he planned that day to kill a white person and he was the first person to be tried and convicted for murder as a hate crime in Westchester County.
- In 2007, New York enacted the Sex Offender Management and Treatment Act.