On March 11, 2007, Elias Fasolas was operating a Bobcat S175 skid-steer loader with a bucket attachment when a limb from a nine-foot-tall tree entered the open operator cab, crushing him against the rear and ceiling of the cab and killing him.
Mr. Fasolas was 28 years old, lived with his parents in Port Jefferson and on the day of his death had been using the Bobcat to clear ivy and brush in their yard, expand a garden there and build a shed for garden tools. The accident was not witnessed but it was clear to all that the tree entered the cab from beneath the bucket and went under a safety bar as Elias was moving the Bobcat forward. He was pronounced dead at the scene.
In the ensuing lawsuit against the manufacturer, distributor and the company from which Elias rented the machine, Elias’s estate claimed that the Bobcat was defectively designed, unreasonably dangerous and defective because it did not incorporate as a standard safety feature a “special applications kit” (which, with windows and a front door, would have restricted material from entering the cab). Also, they claimed the loader was defective because it was rented without adequate warnings and training for its safe use.
The Queens County jury returned a verdict that the loader was defectively designed and rented without adequate warnings and liability was apportioned 25% to the manufacturer, 25% to the distributor and 50% to the equipment rental company. The jury then awarded damages for pre-death conscious pain and suffering in the sum of $1,000,000.
In Fasolas v. Bobcat of New York, Inc. (2d Dept. 2017), both the liability and damages determinations have been affirmed.
Plaintiff’s emergency medicine expert, Howard Schwartz, M.D., testified that in his opinion the decedent experienced conscious pain and suffering for approximately five minutes. The defense did not present any expert testimony as to pain and suffering.
Here are the trauma details, each one of which plaintiff’s expert testified caused conscious pain:
- initial blunt (non-penetrating) impact of tree limb to abdomen and resultant internal tearing of abdominal wall
- laceration of liver due to tree limb pressure
- fractures of sternum and ribs five though nine
- small cracking of thyroid cartilage due to head positioning from head being pressed down to decedent’s chest
- congestion in temporal and eyeball regions from increasing pressure in abdomen
Dr. Schwartz opined that each of the traumatic injuries above caused pain, some excruciating, but not death. Mr. Fasolas died as a result of the compression of his torso but, because his abdomen had only 500 milliliters of blood, the doctor concluded that cardiovascular circulation continued for as much as 10 minutes after the initial impact and that lapse into unconsciousness and death occurred five minutes earlier.
Dr. Schwartz also opined that Mr. Fasolas experienced pre-death terror since he was conscious during the five minutes the tree limb was compressing into him and there were photographs showing the position of his arm in such a manner that he concluded were indicative of the decedent trying to “remove himself from the tree.”
The jurors awarded no damages to the decedent’s parents for loss of earnings or loss of services and the trial judge declined to charge the jury (meaning the claim was not presented to them for evaluation) as to the parents’ claim for loss of financial support. Before his death, the decedent paid significant expenses of his parents (such as their monthly mortgage payments) from the income of a diner he owned. In declining to charge the jury as to this element of pecuniary loss, the trial judge stated that “there was no break in the chain” of the payments to the parents from the diner since its corporate stock passed to them upon their son’s death (he was unmarried and had no children) . The appellate court upheld this ruling without comment.
- The lawsuit was brought in Queens County based upon the residence of the administrator of the decedent’s estate, his sister.