On February 13, 2008, Charles and Julie Simon were wallpaper hangers scheduled to start work at a newly constructed office building at 1991 Marcus Avenue in New Hyde Park. That morning, Mrs. Simon drove to the site in their GMC Suburban with Mr. Simon a passenger in the front seat. Unable to access the property’s main entrance, she drove through an opening in a parking lot chain link fence made the day before by a contractor to permit a tractor-trailer to deliver rebar for an ongoing underground parking project. As they entered the lot, they realized they were on a solid sheet of ice (it had snowed and rained the day and night before) as they slid – unable to stop – and went over a 32 foot precipice into into an unseen excavated pit at the end of the lot.
Mr. Simon was able to jump out of the moving vehicle and was physically uninjured. Mrs. Simon was killed upon impact.
Mr. Simon prevailed in his ensuing lawsuit against the building owner, construction manager and concrete contractor. The Nassau County jury found that all three shared full responsibility for the accident; their claims that Mrs. Simon bore some responsibility were rejected.
The jury awarded damages to Mrs. Simon’s estate for the emotional distress she endured between the moment she realized she was going to be gravely injured or die and the moment of her death in the sum of $500,000 (5-10 seconds). There was no claim made for pre-death conscious (physical) pain and suffering in view of the fact that Mrs. Simon appeared to have been killed on impact. Her death certificate states the cause of death was mechanical asphyxia and blunt force trauma.
The jury also awarded pain and suffering damages to Mr. Simon in the sum of $6,000,000 ($3,000,000 past – seven years, $3,000,000 future – 24 years).
On appeal in Simon v. Granite Building 2 (2d Dept. 2019), the award for Mrs. Simon’s pre-impact terror was affirmed and the award for Mr. Simon’s pain and suffering was reduced to $3,000,000 ($1,500,000 past, $1,500,000 future).
As set forth in the court’s decision, Mr. Simon jumped out of the car before it fell and watched from above as it fell into the pit with his wife inside screaming out his name before she died and the car burst into flames. Though taken to the hospital, Mr. Simon sustained no physical injuries that day. His pain and suffering damages award was for the emotional injuries he sustained as a result of being in the so-called “zone of danger.” As the judge charged the jury, where a defendant negligently exposes a plaintiff to an unreasonable risk of bodily injury or death, the plaintiff may recover damages for injuries he suffered in consequence of observing the serious injury or death of a member of his immediate family.
Mr. Simon suffered severe mental and psychiatric injuries that required extensive therapy and medications that were ongoing seven years later at trial and were expected to be permanent. He was diagnosed with severe and chronic post-traumatic stress disorder (“PTSD”) and Major Depressive Disorder. His symptoms include:
- intense recurring nightmares, guilt over failing to save his wife, flashbacks and irritability
- depression, anxiety and suicidal ideations
- functional impairment to social activities and an inability to maintain healthy relationship with friends and acquaintances
- extensive therapy (over 150 treatments as of trial) with social worker
Defendants argued that Mr. Simon’s pain and suffering award should have been reduced to about $700,000. They noted that several months after his wife’s death, Mr. Simon reconnected and moved in with an old girlfriend, his therapist is not a PTSD expert and he had very limited psychiatric treatment. Furthermore, they noted that in 2011 Mr. Simon developed neurological problems, including loss of fine motor control, dragging of his right leg, incontinence and headaches that were not related to the accident but were from a fungal infection caused by bird or bat droppings resulting in meningitis and encephalitis. Their expert clinical neuropsychologist opined that Mr. Simon did not have PTSD and that he’d been improving until the fungal infection began.
Plaintiff countered that there was nothing to controvert his evidence of mental anguish and suffering – including psychiatric disabilities – and that his meningitis disappeared after treatment with antibiotics and has nothing to do with PTSD.
The jury also awarded past and future economic damages (mainly for loss of earnings) which the appellate court approved as follows:
- $747,500 for Mr. Simon
- $720,000 for the estate of Mrs. Simon
- Mr. and Mrs. Simon were each 47 years old at the time of the accident. They’d been high school sweethearts and were married for 24 years. They had no children.
- In his summation, plaintiffs’ counsel (Ted Rosenberg) asked the jury to award pre-impact terror damages in the sum of $500,000 (the exact amount awarded and affirmed); he also suggested an award for Mr. Simon’s emotional damages in the sum of $2,500,000 ($3,500,000 less than they awarded and $500,000 less than the amount affirmed on appeal).