Lourdes Fernandez was 68 years old on July 2, 2008 when, at about 1:30 p.m., she was crossing Madison Street near its intersection with Jackson Street in Manhattan. She was struck by a left turning bus and died at the scene.
Her son, Roberto Santana, as administrator of his mother’s estate, sued the bus driver (and the city’s transit authority as the owner of the bus) alleging that the driver was negligent because his mother was in the crosswalk, she was struck by the front of the bus and the driver admitted he never saw her. There was a big problem, though: no one, including the bus driver, saw Ms. Fernandez until her body was found on the street 35 feet west of the crosswalk.
At trial, engineering experts for both sides testified as well as a physician for the plaintiff.
The defendants’ expert opined that Ms. Fernandez fell or collapsed, hit her knee and slid underneath the right side of the bus before she was run over by the right wheel.
The plaintiff’s experts opined that Ms. Fernandez was struck in the crosswalk by the front of the bus, knocked to the ground and then rolled underneath the bus until she was fatally run over by a rear wheel of the bus.
The Manhattan jury believed the plaintiff’s experts and found the bus driver was fully at fault and there was no comparative negligence.
The jurors then awarded pre-death conscious pain and suffering damages in the sum of $750,000 broken down as follows:
- $250,000 for fear of impending death, plus
- $500,000 for physical injuries
Defendants appealed arguing (a) that the plaintiff’s expert testimony was speculative and could not form the basis for imposing liability and (b) the damage awards were excessive and lacked an adequate foundation. In Santana v. De Jesus (1st Dept. 2013), the finding of liability against the defendants has now been upheld; however, the damages award has been reduced to $375,000.
The damages award was also the subject of expert testimony – plaintiff’s expert physician, Howard Schwartz, M.D., an internist with a particular background in hospital risk management (who had testified as an expert 24 times concerning the reconstruction of how accidents occurred based on the injuries sustained) opined that 15-25 seconds passed from the moment Ms. Fernandez was aware of the bus coming at her to the moment of loss of consciousness and death.
Her open humerus (arm) fracture was the key evidence that established for the expert that Ms. Fernandez was struck by the front of the bus and that she was aware she was about to be hit. Dr. Schwartz said that the decedent reflexively extended her arm to try to protect herself from the bus during the seconds of pre-impact terror.
The doctor then opined that, after impact, Ms. Fernandez was rolling under the bus which ran over her right pelvis and chest, cracked her ribs, tore her aorta, fractured her spine and, finally, killed her when the wheel ran over and crushed her head.
The appellate court’s decision cites only one case involving pre-death pain and suffering damages – Segal v. City of New York (2d Dept. 2009) – a case we wrote about, here. In that case (from an appellate court widely thought of as one that is not as generous in its awards of pain and suffering damages), $350,000 was affirmed for 10 seconds of pre-impact terror and conscious pain and suffering before Ms. Segal was killed after a tree branch fell and struck her head.
- After impact, the bus driver continued on his route for 45 minutes – unaware he had even struck Ms. Fernandez – until he received a phone call from the transit authority command center instructing him to pull over immediately, discharge his passengers and wait for an investigation.
- There was evidence that Ms. Fernandez had a seizure disorder, took Zoloft for anxiety and depression, had a car accident years earlier that left her with a shunt in her head and a prescription to use a cane to walk (which she decided not to use) and had been assigned a home care attendant who usually accompanied her on walks (but was off duty this fatal day). These facts, the defense contended, supported the theory that Ms. Fernandez simply collapsed while crossing the street and fell into the side of the bus.
- The bus was equipped with cameras but no video of the incident was ever provided (the director of the city’s bus camera project testified that the system was not working properly and he was unable to retrieve the surveillance records).
- The jurors also awarded $50,000 to Mr. Santana for his pecuniary loss (an amount that was not challenged on appeal).