On January 24, 2004, Col. (retired) William Gardner sustained fatal injuries when the vehicle he was driving struck and vaulted over an interstate highway’s snow-covered barrier in Syracuse and fell to the street below. We discussed the ensuing lawsuit in previous articles, here and here. In Gardner v. State of New York (4th Dept. 2015) almost all of the damages findings have been affirmed on appeal.

At the damages trial (judge only, no jury), the total award was $3,569,985 which included:

  1. $1,122,150 for loss of financial support for the decedent’s two teenage sons
  2. $1,365,500 for the boys’ loss of inheritance
  3. $825,000 for the boys’ loss of parental guidance
  4. $250,000 for pre-impact terror
  5. $0 for pre-death pain and suffering

The appellate court affirmed the awards for pre-impact terror (based on the testimony of another driver who saw Col. Gardner’s car as he lost control, hit the snowbank and that it took “several seconds” to fall to the street below), loss of parental guidance and future loss of financial support but reduced by $323,000 the awards for past loss of financial support because that’s all the evidence supported. Additionally, the appellate court rejected claimants’ contention that the trial judge erred in using a personal consumption rate of 45% (their expert used a rate of 28.5% while defendant’s used a rate of 95%).

The affirmed parental loss of guidance awards in the sums of $350,000 ($300,000 past – 9 years, $50,000 future – 3 years) for Brandon (28 years old at trial) and $475,000 ($425,000 past – 9 years, $50,000 future – three years) for Ryan (24 years old at trial)  were based upon the testimony of the sons about how involved and supportive their father was in their lives as well as testimony from their mother (to whom Gardner was married for 14 years before they divorced four years before his death) and several of Col. Gardner’s friends. The trial judge specifically noted that the evidence was clear that there was a strong bond between father and sons, Col. Gardner was a role model for them and his advice and guidance would have continued as his sons graduated college and began their careers. The appellate court noted that the children were teenagers but that  courts may even award damages to financially dependent adults.

The trial judge declined to make any award at all for pre-death physical pain and suffering because, even though Col. Gardner may have lived for a short time after impact (as much as a minute or two), “there is no evidence he was conscious upon impact or had some level of awareness of his pain.” This ruling was not appealed.

The defendant appealed trial judge’s periodic method of payment (but not the amount) of the $1,365,000 award for loss of inheritance but the appellate court ruled that CPLR 5041 , the statute requiring a lump sum present value for certain awards, is not applicable in this case.