On May 1, 2007, at 4 p.m., Jenna Vatalaro, a 19 year old college student, was driving her car westbound on Montauk Highway near its intersection with Atlantic Avenue in the hamlet of Blue Point in Suffolk County when her car was struck by a 35 foot long Suffolk County transit bus. Ms Vatalaro sustained massive injuries and was pronounced dead upon her arrival at the hospital 30 minutes later.
In the ensuing lawsuit, Jenna’s parents claimed that the bus driver crossed over the roadway’s double yellow line and was fully at fault for the crash. A Suffolk County jury agreed and a second jury awarded damages: (a) $250,000 for pre-impact terror, (b) $1,250,000 for pre-death pain and suffering, and (c) $170,000 for economic loss.
In Vatalaro v. County of Suffolk (2d Dept. 2018), the appellate court affirmed the trial judge’s reductions of damages for pre-impact terror to $50,000 and pre-death pain and suffering to $400,000.
Here are the injury details:
- incomplete brain stem injury
- full thickness facial lacerations
- subarachnoid hemorrhage
- pronounced dead at hospital after cardiac arrest at scene
The defense contended that there was no basis for any pre-death pain and suffering award because Jenna was unconscious at the scene, did not suffer, and was completely insensitive to any feeling of pain from the moment of impact until her death.
To the contrary, plaintiff’s counsel contended that the jury should award substantial pre-death pain and suffering damages because witnesses (including passersby and medical experts) testified that:
- Jenna was trembling inside her car immediately after impact, moved her lips like she was trying to say something, moaned responding to the calling of her name and moved her eyes (albeit underneath her eyelids),
- she sustained a severe degree of pain for about 10 minutes,
- Jenna had agonal respirations (four per minute) 10 minutes after impact and a pulse rate of about 100 15 minutes after impact, and,
- an incomplete brain stem injury explains how Jenna could appear to be unconscious while retaining sufficient consciousness to respond to verbal stimulation by trying to speak, moaning or increasing the movement of her eyes under her lids.
The pre-impact terror award was based upon the bus driver’s testimony that he established eye contact with Jenna for about a second. Plaintiff’s counsel argued that it was likely Jenna saw the bus bearing down upon her for longer than a second causing her to fear that death (or a grave injury) was imminent; whereas the defense argued that there was no action or indicia of Jenna’s awareness of an imminent impact with the bus.
- Although Jenna’s parents would not allow an autopsy to be conducted, there was an external post-mortem examination (by defendant’s expert pathologist) that allowed the competing medical experts to opine on matters such as the periods of time Jenna was conscious and whether and for how long she experienced any pain.
- The defense medical expert, a retired pathologist, had been employed by the County of Suffolk at the time of the accident and was the one who preformed the post-mortem examination.
- The jury also awarded $170,000 for the monetary loss sustained by Jenna’s parents – i.e., a portion of the income she would have earned as well as the loss of her household services. Plaintiff sought an increase in this aspect of the verdict but both the trial judge and the appellate court agreed that the amount was reasonable.