On January 29, 2013, at about 7:30 p.m., Juan Estevez was attempting to cross Sunrise Highway at its intersection with Henry Street in Freeport when he was struck by a left turning vehicle. Mr. Estevez, 64 years old, sustained massive injuries in and about his head, ribs and sternum. He was pronounced dead at the hospital three hours later after resuscitation efforts failed. He was divorced, retired, lived alone and survived by three adult sons.
In the ensuing lawsuit by the decedent’s estate against the driver, a Nassau County jury determined that both the driver and the decedent were at fault for the accident (the driver 22% and the decedent 78%) but that the estate was not entitled to any damages at all for pre-impact terror, pre-death pain and suffering or loss of parental guidance.
In Estevez v. Tam (2d Dept. 2017), the jury verdict was affirmed. The only damages issue on appeal was loss of parental guidance as plaintiff did not challenge the verdict as to either pre-impact terror or pre-death pain and suffering.
Mr. Estevez’s sons were 34, 40 and 44 years old at the time of trial and they testified regarding the tight knit family bond they had with their father and that they talked to him often and strongly relied upon him frequently for guidance. The defendant noted, though, that (a) each of the sons lived on his own with their own families, (b) each was self-sufficient (there was no evidence that their father gave them any financial support) and, (c) the sons offered no specific testimony or evidence that they relied upon their father for counsel or guidance. While it appears the appellate court acknowledged that there was some evidence of loss of parental guidance, the court nonetheless affirmed the verdict awarding nothing for this damage claim because the jury was entitled to weigh the testimony on this issue and determine for itself which version preponderated.
As to liability, the defendant claimed he could not have avoided the impact because the decedent was wearing dark clothing, walking outside the crosswalk and against the light (which he and his passengers all testified was green for him and red for pedestrians) and ran into the side of his car (the driver’s side mirror was knocked off during the incident). He never saw Mr. Estevez before impact and had no indication a pedestrian was involved until he exited his car.
About 18 months before trial, defendant moved for summary judgment dismissing the claims for pre-impact terror and pre-death pain and suffering. The judge denied the motion and allowed the claims to be resolved by a jury at trial in part because of a statement from the driver that the decedent “looked conscious” at the scene and an affidavit from a passenger that the decedent was moving his left hand while on the ground before taken away by ambulance.
At trial, the renowned pathologist Michael Baden, M.D., testified as an expert for the defense. He stated that the decedent suffered brain damage and lost consciousness when the car hit him and that any body movement at the scene was not voluntary. The coroner who performed the autopsy testified for the estate and opined that Mr. Estevez experienced a moment of pre-impact terror as well as pre-death conscious pain and suffering. The jury credited the defense expert, awarded nothing for these elements of plaintiff’s claim and the findings were not appealed.
- There was some testimony that the decedent babysat a granddaughter on occasion but no testimony that the girl’s father incurred any costs in retaining a replacement babysitter (which could have formed the basis for a loss of services claim).
- There was a $150,000 settlement offer that was rejected. In summation, plaintiff’s attorney asked the jury to award $900,000 – $600,000 for the estate’s financial losses, $100,000 for pre-impact terror and $200,000 for pre-death pain and suffering.