On November 8, 2006, Ellen Mary McHugh was in the crosswalk on East Gun Hill Road at Bainbridge Avenue in the Bronx, when she was struck and killed by a left turning city bus.
This roadway has been called the most dangerous in the Bronx:
Mrs. McHugh, a 66 year old widow, was survived by her sons Kevin (28 years old) and Peter (32 years old). They brought a wrongful death lawsuit against the bus driver and his employer, the transit authority, and plaintiffs were granted summary judgment on the issue of liability in December 2008.
Under New York’s wrongful death laws (unlike most other states), there is no recovery permitted for the emotional loss or grief sustained by surviving family members. Basically, only two claims for damages are permitted in New York death cases:
- pre-death conscious pain and suffering of the decedent, and,
- pecuniary (economic) losses sustained by the decedent’s heirs (under EPTL Section 5-4.3)
Mrs. McHugh was pronounced dead at the scene and there was insufficient evidence to prove any pre-death pain or suffering.
Her sons’ only viable claims were for pecuniary damages and, in a damages only trial in December 2009, they argued that due to the death of their mother they sustained substantial economic losses of
- (a) parental guidance and
- (b) financial support.
Children are guided by their parents in activities such as reading, teaching, imparting moral values, coaching athletics and the like.
Defendants claimed that there was insufficient evidence to support any award at all for pecuniary damages.
The jurors determined that Kevin and Peter presented sufficient proof of their economic losses and awarded them $498,000 ($83,000 past – 3 years, $415,000 future – 15 years).
The award was upheld in a post-trial decision and has now been affirmed on appeal in McHugh v. New York City Tr. Auth. (1st Dept. 2012).
As set forth in the court decisions, the proof established that Mrs. McHugh, up until the time of her death, resided with her older son (32 year old Peter) and provided him financial assistance (she paid the rent for their apartment) while maintaining regular contact with her younger son (28 year old Kevin) who relied on her for guidance and some financial support.
Although there is no prohibition against awards of loss of parental guidance and financial support damages to adult children in wrongful death cases, almost all of the cases involve children under the age of 21. In this case, though, there were significant unusual facts that influenced the jury and the judges:
- Peter had lived with his mother his entire life; he never married, had no children and no friends.
- Peter dropped out of school after ninth grade, had a series of low paying jobs with significant periods of unemployment and appeared to have psychological problems (he was often found sitting alone in his bedroom in the dark talking to himself).
- Mrs. McHugh was widowed at the age of 49, raised her two sons on her own and was a very popular and hard working food service manager (school "lunch lady") at PS 94 in the Bronx, earning about $19,000 a year (supplemented by a small annuity from her late husband’s pension and Social Security payments).
- Kevin graduated from college with an electrical engineering degree and is self-sustaining living in Philadelphia and working on naval ship systems.
- The verdict did not distinguish between loss of guidance and loss of financial support; nor did it distinguish between the two brothers. It is, though, apparent that the overwhelming majority of the sum awarded was for Peter’s losses.