It was a beautiful summer day on July 20, 2001, still light out around 7 p.m., when 15 year old Geremy McConnell was riding his bicycle on Hyland Boulevard, just north of Donley Avenue, in Staten Island. He was headed towards his cousin’s house but was killed instantly when the right rear wheel of a 40 foot long New York City Transit Authority bus ran over his head.
Tragedy ensued when there was a collision between a bicyclist and a bus:
In the ensuing wrongful death lawsuit, Geremy’s widowed 48 year old mother, Geraldine McConnell, claimed, through the testimony of an expert accident reconstructionist, that the bus driver should and could have seen Geremy if he had looked in his right side mirror. The expert also concluded that the bus driver failed to leave enough space between his bus and a car in the parking lane that he was trying to maneuver around when the collision occurred.
Bicyclists often ride to the right of big buses, like this:
The evidence established that Geremy was riding his bike five inches from the right side of the moving bus attempting to ride between the bus and a parked car. Therefore, the defense contended, Geremy lost control of his bike in his own attempt to maneuver around the parked car and that he alone was responsible for the tragic accident.
After nine days of trial, on January 22, 2008, a Richmond County jury determined that the bus driver was 100% at fault for the accident. The jurors also determined that Geremy was negligent but that his negligence was not a proximate cause of the accident. They then awarded Geremy’s mother $520,000 for her economic loss resulting from his death.
Last week, in McConnell v. Santana (2nd Dept. 2010), the appellate court ruled that it was logically impossible for the jury to find that Geremy was negligent without also finding that his negligence was a proximate cause of the accident. Therefore, the judges ruled that there must be a new trial solely on the issue of whether Geremy was at fault in the happening of the accident and whether such fault was a proximate cause of the accident.
There are many situations in which a finding that a plaintiff was negligent will not require the additional finding that his fault was a significant factor in causing an accident (for example, when a plaintiff driver is found negligent for failing to see a defendant driver but plaintiff’s negligence is not a proximate cause of the accident because of defendant’s excessive speed). In this case, though, the appellate judges found otherwise because the issues of negligence and proximate cause were so inextricably interwoven.
The new jury will not address the issues of whether the bus driver was negligent or the damage award was a proper amount. Those findings stand; however, if the new jury finds that Geremy’s negligence was a substantial factor in causing the accident, then they will be required to apportion the fault between the bus driver and Geremy, thus reducing the award to Geremy’s mother.
The damages award was based solely on the economic loss sustained by Mrs. McConnell. Under New York’s wrongful death laws (unlike many other states), there are no provisions for the recovery of money damages for loss of love or affection.
Under EPTL 5-4.3, damages in wrongful death cases are limited to “pecuniary” losses – essentially, the economic losses, such as loss of economic support, inheritance and/or household services, sustained by a decedent’s family members.
Plaintiff’s expert economist testified that as a high school graduate Geremy would have earned a total gross income of $1,850,000 by the time he was 49 years old when his mother would have reached her life expectancy of 82 years. And Mrs. McConnell testified that Geremy had helped around the house with chores and contributed financially to her ($15 to $30 per paycheck) from his part-time jobs at a church and a museum. She needed his support as she’d lost both her husband and her job at White Castle making $6.50 an hour.
Geremy was clearly a loving and devoted son who helped his mother with chores and whatever money he could.
The defense argued on appeal that $520,000 was unreasonably excessive because:
- there was insufficient evidence that the 48 year old Mrs. McConnell would, absent the accident, have inherited anything from Geremy
- the economist projected only $26,000 for the loss of Geremy’s household services, and
- while it was reasonable to expect Geremy would have contributed some money to his mother over her lifetime, there was no basis to assume he’d have given her $520,000 over the next 34 years as that represented an excessively unrealistic portion, 28%, of his projected gross earnings.
The appellate court implicitly rejected the defense arguments in ruling, without explanation, that the $520,000 jury award did not deviate from what would be reasonable compensation and therefore that finding will apply to the retrial.
- The parties stipulated that the right rear wheel of the bus went over Geremy’s head, resulting in his death. The jury made no award for pre-death pain and suffering and no award for pre-impact terror, findings that clearly had no evidentiary basis and which were not appealed by the plaintiff.
- A passenger in the bus testified for the defense that just before hearing a thud he’d seen a bicyclist moving “very fast” and at “a crazy angle toward the bus.” On cross-examination, though, the witness admitted that at the time and for years he’d been on a powerful prescription medication (Haldol) to control “hearing voices” and that the drug caused memory loss. He also admitted he suffered from extropia and had limited vision.