On December 2, 2009 at about 7 p.m., a woman was walking across the street at the intersection of Avenue U and East 71st Street in Brooklyn. A city bus driver had stopped for a red light before turning right onto Avenue U when his bus struck and killed the pedestrian, 65 year old Virginia McKibbin.
In the ensuing lawsuit against the bus driver and owner, on December 20, 2012, a Kings County jury apportioned fault for the accident 75 % to the driver and 25% to the pedestrian.
The jury then awarded pecuniary damages to the decedent’s three adult daughters in the sum of $1,200,000 (10 years) but awarded zero for pre-impact terror and zero for conscious pain and suffering.
In Keenan v. Molloy (2d Dept. 2016), the appellate court:
- affirmed the jury’s verdict awarding zero damages for pre-impact terror and zero damages for conscious pain and suffering, and
- reduced the pecuniary damages award to the principal sum of $600,000 (i.e., $800,000 reduced by 25% for comparative fault).
Under New York law, pecuniary damages may be awarded to a decedent’s children for their monetary losses caused by their parent’s death. Jurors may not make any award for sorrow, mental anguish, injury to feelings or for loss of companionship. Among the considerations jurors are charged with considering in this regard are (a) the earnings a decedent would have spent in the future for the care and support of her children and (b) the value of the intellectual, moral and physical training, guidance and assistance their mother would have given them had she lived.
The appellate court determined that $800,000 for pecuniary damages is reasonable in this case based upon the testimony of Ms. McKibbin’s three daughters (who were 39, 42 and 45 years old at the time of trial) as to their loss of parental guidance. All four lived close to one another in Brooklyn, shared Sunday dinners every week and spent a great deal of other time together each week (along with the daughters’ three young children). There was significant unrebutted testimony about how close the daughters and grandchildren were with the decedent, how she provided them all with counseling especially during difficult times and how Ms. McKibbin was “the glue that held their family together.”
There was also evidence that the decedent spent a great deal of time caring for her grandchildren, babysitting for them, cooking for them, having weekend sleep-overs and helping to teach and care for her special needs grandson.
In a post-trial decision, the presiding judge characterized the nature and quality of the relationship between Ms. McKibbin and her family as “exceptional and significant” and stated that her every day involvement with her family could easily support the jury’s $1,200,000 award for loss of parental guidance and support.
Emotional pain and suffering damages for a decedent’s pre-impact terror may be awarded when there is proof that between the moment a decedent realized she was going to be gravely injured and die and the moment she sustained a physical injury:
- she was aware of the danger that caused her death,
- she was aware of the likelihood of grave injury or death, and
- she suffered emotional distress as a result of her awareness of her impending grave injury or death.
In this case, the defense argued successfully that there should be no award for pre-impact emotional distress because (a) a scream that the bus driver heard at the time of impact may have come from someone other than the decedent and (b) Ms. McKibbin was likely rendered unconscious immediately upon impact. Plaintiff contended that because the accident occurred without witnesses (the bus had no passengers), the only person who could have screamed was the decedent.
Pre-death pain and suffering damages (distinct from emotional distress damages for pre-impact terror) may be awarded for pain and suffering during such time as a decedent was conscious from the moment of injury to the moment of death.
Here, the defendants argued successfully that no award at all should be made as to this aspect of damages because, as opined by their expert trauma physician, Ms. McKibbin lost consciousness on impact. Plaintiff’s expert opined that when Ms. McKibbin was being run over by the bus “she knew what was happening to her” and she “could feel pain” but he did not offer any opinion as to whether she was conscious when found moments later in the street (“I don’t know.”). A passerby testified that while Ms. McKibbin was on the ground he heard very shallow breathing, like a small gasp for air, but the defense expert testified that a person exhibiting such so-called agonal breathing who sustained massive trauma like Ms. McKibbin did in this case generally would be unconscious.
Ms. McKibbin was found unconscious by ambulance personnel and confirmed dead on arrival at the hospital 30 minutes after the accident.
- Ms. McKibbin had worked for 20 years in a title insurance office earning about $42,000 in her last full year of work in 2008.
- There was substantial testimony from the daughters about the financial assistance their mother gave to them and their children from time to time for things like rent, utility bills and divorce proceedings. There was no accompanying documentary evidence to support those claims and the only specific testimony in this regard was from one of the daughters who testified that her mother gave her about $1,250 per month.
- In his summation, plaintiff’s counsel, Christopher Meagher, asked the jury to award $1,000,000 for pecuniary damages sustained by the decedent’s three adult daughters (two divorced, one never married) who, he said, lived in a solar system that revolved around their mother. Exercising their prerogative, the jury determined that this item of damage exceeded counsel’s request.
- With the 25% reduction for comparative fault, the jury’s award was reduced to $900,000. While the appellate court then reduced the gross award to $800,000 – with the result being a net award of $600,000 – the award remains quite significant and at the high end of such awards to adult children in New York wrongful death cases.