On June 2, 2006 at 6:20 a.m., Helen Skillman was struck and killed by a New York City Transit Authority (NYCTA) bus backing up onto a sidewalk at the 165th Street terminal on Merrick Boulevard in the Jamaica section of Queens.

Here is the bus terminal where the accident took place:

Ms. Skillman, a healthy 79 year old, was on her daily trip from her home in Bayside to Merrick Boulevard where she fed and bathed her disabled aunt. After she got out at the terminal, Helen was struck as the bus backed up onto the sidewalk (a maneuver required when there was another bus parked next to it).

The driver never saw her before he struck twice – once in reverse and again when he moved forward and rolled over her. He stopped when passersby screamed.

Medics arrived within a few minutes and rushed their conscious but dying patient to the local hospital where she went into cardiac arrest. CPR was then performed but it was ineffective and she was pronounced dead.

In the ensuing lawsuit, Dowd v. New York City Transit Authority (Supreme Court, Queens County, Index # 20305/06), there were competing arguments as to fault for the accident:

  1. Plaintiff (Skillman’s surviving daughter, Deborah Dowd) claimed that the bus driver negligently reversed the bus despite a blind spot that prevented him from seeing any pedestrian who may have been behind the vehicle.
  2. Defense counsel claimed that Skillman was at least partially at fault for walking into the path of a slowly backing bus that was visible and making a loud warning noise.

The jury found that the bus driver was 100% at fault and awarded $1,750,000 for pre-death conscious pain and suffering.

The defendants appealed claiming that:

  • some comparative fault should have been assessed on the decedent’s part and
  • the pain and suffering award was excessive

Last week, in Dowd v. New York City Transit Authority (2d Dept. 2010), the liability verdict fully against the defendants was upheld; however, the pain and suffering award was conditionally reduced by $550,000 and now stands at $1,200,000.

In affirming the liability verdict against the bus driver, the court merely cited basic traffic laws (such as VTL Section 1211, which provides that a driver shall not back up unless he can do so with safety) and they stated that the jury’s finding of fault was not contrary to the weight of the evidence.

As to the pain and suffering verdict, the court noted that the decedent was conscious and complaining of pain for 18 minutes – from the time the medics arrived until she went into cardiac arrest at the hospital.

In reducing the award by $550,000, the judges cited three relevant cases but before discussing them, let’s take a look at the details of Ms. Skillman’s injuries available to the judges but not mentioned in the decision, including:

  • pre-injury terror (independent testimony established that she was aware of the bus bearing down on her and tried to get away and thus counsel asked the jury to include this as an element of the decedent’s pain and suffering)
  • she sustained partial amputations and crush injuries of both lower extremities, multiple fractures of both legs, her pelvis, back and ribs
  • she also sustained an evisceration of her abdomen and massive bleeding
  • she opened her eyes at the scene and said "help me" after which she remained awake during the entire ambulance ride while complaining of pain

Here are the three three cases cited in the decision as to the propriety of substantial awards for short periods of pre-death pain and suffering:

  1. Perez v. St. Vincents Hosp. & Med. Ctr. of N.Y. (2d Dept. 2009) – $800,000 (reduced from a $1,500,000 jury verdict) for death following about 30 minutes of choking on food [discussed by us last year, here, in an article on substantial awards for short periods of pre-death pain and suffering]
  2. Twersky v. Busche (2d Dept. 2007) – $1,000,000 (reinstating a jury verdict in that amount after a trial judge had reduced it to $650,000) for the death of a 47 year old pedestrian struck by a van who sustained massive injuries including a fractured femur, collapsed lungs and internal bleeding and who was conscious and in pain for 2 1/2 hours until anesthetized for surgery
  3. Ramos v. LaMontana Moving & Storage, Inc. (1st Dept. 1998) – $900,000 (increased from the trial judge’s reduction of a $3,000,000 verdict to $250,000) for 15-30 minutes of pain following a motor vehicle accident in which the decedent sustained excruciating crush injuries

Two other relevant cases that were not mentioned by the court are:

  • Fa-Shun Ou v. New York City Transit Authority (2d Dept. 2003) – $365,000 for a woman struck by bus who for 15-30 minutes held her friend’s hand and moved her lips before death from skull fractures and cerebral contusions
  • McAndrews v. City of New York (2d Dept. 2002) – $1,000,000 for a 47 year old in car accident with multiple pelvic, rib and humerus fractures and several lacerated internal organs who was conscious and awake at the scene for about 40 minutes but died on the operating table 1 1/2 hours after the accident [decision reversed on other grounds by Court of Appeals]

Inside Information:

  • The jury also awarded $250,000 in pecuniary, or economic, damages, an amount that was not challenged on appeal (there was some testimony as to the decedent’s economic contributions to her daughter and grandchildren but it was minimal given that decedent was retired with a small pension).
  • The defendants argued that evidence relating to the NYCTA’s internal policies as to when to use spotters (employees who stood behind buses to help drivers back up) should not have been allowed but the appellate judges found that it did not result in an unwarranted verdict.
  • The defense presented no witnesses in the damages portion of the trial while plaintiff called three (the EMT, a forensic pathologist and the decedent’s daughter).
  • Plaintiff’s closing argument included a statement that if the jury were to assign even 1% of the fault to the plaintiff then "we can all go home tonight, open our windows, and we are going to hear people laughing at the New York City Transit Authority." The defense argued on appeal that this and other remarks were so inflammatory that they tainted the jury and required a new trial; however, this is one of those "remaining contentions" that the appellate judges stated at the end of their opinion are "without merit."