On May 30, 2008, crane operator Donald Leo and laborer Ramadan Kurtaj were working at a building construction site in Manhattan. Mr. Leo was inside a crane’s cab 14 stories above East 91st Street and Mr. Kurtaj was working on the street below. Shortly before 8 a.m.,the crane tilted, rocked and then sheared off of its supporting turntable and collapsed, plummeting 200 feet striking a building and bouncing off several terraces before crash landing on the street pavement. Both Mr. Leo (30 years old) and Mr. Kurtaj (27 years old) were killed.
In the ensuing highly publicized lawsuit by the estates of both decedents. with an 11 month trial and 87 witnesses, on July 30, 2015, a Manhattan jury determined that the crane owners (James F. Lomma and his two related companies)were negligent and awarded pre-death pain and suffering damages (a) for Mr. Leo in the sum of $15,500,000 ($7,500,000 for pre-impact terror plus $8,000,000 for pre-death pain and suffering) and (b) for Mr. Kurtaj in the sum of $31,500,000 ($7,500,000 for pre-impact terror plus $24,000,000 for pain and suffering).
Post-trial, the defendants made a motion for a substantial reduction of the damage awards; however, the trial judge issued a decision declining to reduce the awards.
On appeal, in Matter of 91st Street Crane Collapse Litigation (1st Dept. 2017), the pain and suffering awards have been reduced to $8,000,000 for Mr. Leo’s estate ($2,500,000 for pre-impact terror plus $5,500,000 for pain and suffering) and $9,500,000 for Mr. Kurtaj’s estate ($2,000,000 for pre-impact terror plus $7,500,000 for pain and suffering).
The evidence indicated that the total time from the initial crane rocking to its impact with the street was about 20 seconds and that Mr. Leo was aware of his impending death when trapped inside the crane’s cab for those 20 seconds. Witnesses from adjacent apartment buildings testified and described the “sheer look of panic and fear” on Mr. Leo’s face. They described him making a series of hand movements and putting his hands together as if praying. And, they described him as then seeming to brace himself before the crane ultimately fell off the building.
The court stated that pre-impact terror is a sub-category of conscious pain and suffering and then explained that damages for pre-impact terror are designed to compensate for the fear the decedent experienced during the interval between the moment the decedent appreciated the danger resulting in his death and the moment he sustained a physical injury as a result of the danger.
The impacts caused massive blunt impact head trauma (with near-complete decapitation) and many massive fractures to Mr. Leo’s arms and legs and almost 20 minutes of excruciating pain before he was pronounced dead at the scene.
The evidence indicated that Mr. Kurtaj heard the crane collapse and then ran and tried to warn others until about 20 seconds later when he was struck by the crane. He sustained many degloving and bone-shattering injuries and was alive and conscious while trapped under the wreckage for 20 minutes screaming and in obvious pain. He was also conscious, moaning, suffering and in pain for an additional 10 minutes while in the ambulance on route to the hospital.
At the hospital, Mr. Kurtaj was handed off to doctors who testified that he was unresponsive and, within six minutes, was administered paralytics and intubated. He was taken to the operating room two and a half hours after arriving at the hospital but he died during surgery, without ever having regained any responsiveness, approximately four hours after the crane collapse.
As to pre-impact terror claims, generally, the court cautioned that: “There must be some evidence that the decedent perceived the likelihood of grave injury or death before the impact, and suffered emotional distress as a result.” In this case, there was substantial direct evidence not only of the “inconceivable pre- impact terror” endured by both Messrs. Leo and Kurtaj but also of their post-impact pre-death conscious pain and suffering.
As to punitive damages, the jury heard evidence that Lomma had made calculated decisions over a period of months when replacing a broken crane part, used a cheap unreliable China-based distributor and failed to test the defective welds. After finding that plaintiffs were entitled to an award of punitive damages, the judge charged the jury as to the law that applies to the amount of punitive damages which were then awarded by the jury in the sum of $24,000,000 for each plaintiff. The appellate court stated that the defendant “placed profit over the safety of construction workers and the public” and agreed that punitive damages were warranted. Nonetheless, the court ordered a reduction of the punitive damages awards from $24,000,000 for each plaintiff to $8,000,000 for plaintiff Leo and $9,500,000 for plaintiff Kurtaj.
- The court’s mention that Mr. Kurtaj remained conscious and in pain for as much as three hours apparently assumes that the jury determined that fact but it did not. Several medical experts and treating physicians testified but none concluded that Mr. Kurtaj was conscious and in pain after he arrived at the hospital (where, within a few minutes, he was given paralytics). There was, though, a lone notation in the medical records by an unknown person who was not called to testify indicating that, three hours after the collapse, Mr. Kurtaj had a score of seven on the Glasgow Coma Scale.
- The jury was shown a video depicting the extrication of Mr. Kurtaj from under the debris which took approximately 20 minutes.
- Criminal charges were lodged against James Lomma (the owner of the crane) and a mechanic he employed. Mr. Lomma was acquitted of all charges (the most serious of which was second-degree manslaughter) while the mechanic pled guilty to criminally negligent homicide.
- Three other defendants settled with plaintiffs for a combined total of $3,500,000 during the trial.