On October 18, 2003, Maria Araujo was crossing the street with her three year old son Fernando in her arms. Just blocks from their home in Hempstead, in a crosswalk at Washington and Jackson Streets, Maria was struck in a crosswalk by a car that had collided with a county bus.
Here is the accident scene on the very day it happened:
The impact threw Ms. Araujo into the air, onto the windshield of another car and then onto the curb. Her skull was fractured and the 34 year old Maria was dead.
Her baby boy Fernando lived. He’d flown through the air with his mother, until she let go of him whereupon he landed on the street and sustained a fractured leg.
Neither driver would admit any responsibility for the crash in which each was proceeding straight through the intersection (the car northbound, the bus westbound).
A Nassau County jury ruled on March 26, 2010 that both drivers bore responsibility for the accident – the car driver 65%, the bus driver 35%. The jurors then turned to the issue of damages and awarded a total of $3,015,000.
After an appeal by the defendants both as to the liability findings and as to whether the damages awards were excessive, all findings have been affirmed in Vasquez v. County of Nassau (2d Dept. 2012).
There were six elements of damages awarded – two dealt with pain and suffering and four dealt with economic losses:
1. Maria Araujo’s pre-death pain and suffering – $100,000:
The evidence indicated that Maria died at the scene, within three seconds, due to severe head trauma. The defense argued that there was no evidence Maria was conscious or aware of any pain but plaintiff’s forensic pathologist testified that Maria was conscious as she flew through the air holding on to Fernando for as long as she could.
2. Fernando’s pain and suffering – $35,000 (all past, no future):
When he hit the ground, Fernando sustained a nondisplaced tibia-fibula fracture. He was casted for six weeks and made a good recovery. There was no evidence of any other treatment.
3. Loss of financial support – $240,000 ($40,000 past – 6 1/2 years, $200,000 future – 55 years):
Maria worked as a housekeeper last earning about $7,000 in a year. Plaintiff’s expert economist projected her lost earnings through the age of 62 years and then applied a 25% discount for personal consumption to determine that $240,000 was the total for past and future loss of earnings.
4. Loss of household services $1,940,000 ($140,000 past – 6 1/2 years, $1,800,000 future – 55 years):
Using $17 per hour as the cost to replace household services such as cooking, cleaning, laundry and shopping, the economist then estimated Maria would have spent about 25 hours a week providing such services for the expected balance of her life (55 years) and he added 3.15% a year to account for cost increases.
5. Loss of parental guidance –$700,000 ($100,000 past – 6 1/2 years, $600,000 future – 55 years):
This element of damages refers to the economic value of the intellectual, moral and physical training, guidance and assistance that Maria would have given to Fernando had she lived.
6. Funeral expense – $10,000
Inside Information:
- Anticipating an appeal, the trial judge stated on the record that he had a “special message” for his senior jurists: “This jury verdict could not more reflect the issues of the facts, the law and justice in regard to this case.” Further, the judge said the jurors had superbly analyzed damages and their figures in no way were evidence of a runaway jury. Clearly, the appellate judges agreed.
- Fernando has Down Syndrome (a genetic disorder that causes lifelong mental retardation, developmental delays and other problems) and could only speak a few words. He required substantial care. The defense called an expert pediatric psychiatrist to testify in an attempt to establish that Fernando would not benefit from intellectual or moral guidance because of his low IQ and learning disability. The strategy backfired.
- In summation, plaintiff’s counsel asked the jurors to award $6,000,000 for loss of parental guidance damages; the defense suggested $100,000. As to the household services loss, plaintiff’s counsel requested the amount calculated by the economist; the defense suggested $250,000 was appropriate.
- This case was superbly tried by Howard Hershenhorn of Gair, Gair, Conason, Steigman, Mackauf, Bloom & Rubinowitz after both defendants took a “no pay” position (meaning that they refused to make any settlement offer at all).