On July 13, 2011, Bohdan Vitenko was swimming laps at the city owned and operated Lyons swimming pool in Staten Island. He and his friends were training by swimming underwater as much of the length of the Olympic-sized pool as they could without breathing, immediately followed by attempting to remain underwater as long as they could while holding their breath. During the exercise, Bohdan lost consciousness in three and a half feet of water and died.
Bohdan’s sole distributee, his mother Malvina Vitenko, sued the city for wrongful death claiming that the city was negligent in failing to have an adequate number of lifeguards or provide adequate training to them. The Richmond County jury found that the city was negligent in not providing training to lifeguards with regard to this tragic incident of shallow water blackout (which occurs if a swimmer repeatedly hyperventilates and then holds his breath). The jury apportioned liability 70% to the city and 30% to Bohdan.
The jury found that plaintiff sustained pecuniary damages in the sum of $ 1,490,000 ($440,000 past – six years, $1,050,000 future – 15 years). The trial judge ruled that the awards were excessive and reduced the total to $518,000 ($308,000 past, $210,000 future). The judge also reduced the future period of years from 15 to three.
In Vitenko v. City of New York (2d Dept. 2022), the liability verdict has been affirmed but the appellate court determined that the trial judge’s damages reduction went too far and the panel held that the proper pecuniary damages award is $708,000 ($308,000 past, $400,000 future).
Under New York’s Estates, Powers and Trusts Law 5-4.3, damages may be awarded for wrongful death to compensate the decedent’s distributees for the “pecuniary injuries resulting from the decedent’s death.” To prevail, there must be proof that the distributee(s) had a reasonable expectation of support (such as financial payments or household assistance) from the decedent and therefore a pecuniary loss.
Here, plaintiff’s mother claimed that her 21 year old son had worked part-time in the family woodworking business and that he helped in the house especially with raising and taking care of his nine year old brother. The defense argued that the evidence of pecuniary loss was not only insufficient but entirely speculative noting that Bohdan was a full-time college student, had worked in the family business only on limited occasions and there was no substantial proof that his absence from the business caused any financial loss.
- One of Bohdan’s friends, Jonathan Proce, also drowned that day due to shallow water blackout. His case was settled for $600,000.
- The only persons who testified in the damages phase of the trial were Bohdan’s mother and his step-father (who ran the family business).
- There was no award for pre-death conscious pain and suffering; plaintiff conceded that Bohdan had passed out and was unconscious when he drowned