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
Brain Stem Anatomy

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:

  1. 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),
  2. she sustained a severe degree of pain for about 10 minutes,
  3. Jenna had agonal respirations (four per minute) 10 minutes after impact and a pulse rate of about 100 15 minutes after impact, and,
  4. 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.

Inside Information:

  • 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.

On June 29, 2005, Concetta Russo-Carriero, a 56 year old paralegal, was abducted, stabbed twice with a knife and murdered in the parking garage of a White Plains shopping mall.

The murder took place on the 7th floor of this parking lot at the Galleria Mall.

The perpetrator, 43 year old Phillip Grant, was a convicted rapist who’d already spent 25 years in prison. He specifically selected the garage to commit his crime because of its lax security and spent two hours there lurking around and looking for someone whose car he could hijack and drive to Connecticut.

In 2007, Ms. Russo-Carriero’s executors commenced a wrongful death lawsuit against the City of White Plains (the owner and operator of the garage).

Following the trial in 2014, the Westchester County jurors determined that the city was at fault finding that (a) the incident was foreseeable, (b) the city failed to provide minimal precautionary measures to secure the garage, and, (c) the city’s negligence was a substantial factor in causing the death.

The jury also found that the criminal conduct of the murderer (who was caught quickly, confessed, convicted and sent to jail for 25 years to life) was not a substantial factor in causing Ms. Russo-Carriero’s death. Here is the jury charge in which the trial judge explained to the jurors the foreseeability of criminal conduct, lack of security and apportionment of fault issues.

Pain and suffering damages, as set forth in the verdict sheet, were assessed as follows:

  • from the moment Ms. Russo-Carriero realized she was going to be gravely injured or die and the moment she sustained a physical injury – $1,000,000
  • from the moment of physical injury to the moment of death – $500,000

The defendant appealed arguing that the case should have been dismissed on the basis of governmental immunity because its implementation of security measures at the garage involved the discretionary allocation of police resources. Furthermore, the city argued that it did not breach its duty to provide adequate security. Finally, the city argued that the jury was wrong in failing to assign any portion of the fault to the perpetrator of the attack (who was not named as a defendant in the civil suit) and that there was no evidentiary basis for the award of $500,000 for conscious pain and suffering (for the period after the stabbing).

In Granata v. City of White Plains (2d Dept. 2018), the appellate court rejected all of defendant’s arguments except the one regarding apportionment of fault (which it modified – assigning 35% to the murderer, reducing defendant’s share to 65%).

In affirming the $500,000 award for the pain and suffering Ms. Russo-Carriero sustained after she was stabbed, the court stated that there was enough circumstantial evidence that she experienced some level of cognitive awareness after the stabbing. Here are the physical injury details:

  • a witness heard terrified screams
  • decedent’s belongings were strewn about indicating a struggle after she was stabbed
  • there was blood on the ground far enough away from the location of the stabbing indicating that she was stabbed in one place in the garage and then engaged in a struggle before ultimately dying in a different location in the garage
  • a passerby found Ms. Russo-Carriero on the ground bleeding and he saw her eyes moving
  • a police officer testified that Ms. Carriero had a pulse and was breathing as she lay dying on the garage floor and that her lips moved in response to his attempt to question her about what happened

The pre-injury pain and suffering award of $1,000,000 was not challenged as there was evidence (from the perpetrator’s confession) that Ms. Russo-Carreiro was slowly walked at knife-point for about 260 feet in the garage and that she initially knocked the knife away prior to being stabbed.

Inside Information:

  • The jury also awarded wrongful death damages to decedent’s husband ($155,000) and her two children ($310,000).
  • The murderer confessed to police that he planned that day to kill a white person and he was the first person to be tried and convicted for murder as a hate crime in Westchester County.
  • In 2007, New York enacted the Sex Offender Management and Treatment Act.

On May 10, 2007, Ivan Hernandez Morales, then 21 years old, was killed in a work-related accident when a private garbage truck lurched backward and he was pinned and crushed against a dumpster in a driveway off 37th Street in Astoria. Mr. Morales was employed  as a helper on the truck owned by his employer Crown Container Co. and operated by a coworker.

In the ensuing lawsuit to recover damages for pain and suffering and wrongful death, plaintiff asserted claims against Crown, related companies and its driver.  In the midst of trial, the Crown defendants settled with plaintiff for the sum of $1,550,000 plus the waiver of the workers compensation lien of about $150,000. The only defendant remaining at trial was Advanced Fleet Maintenance, Inc. which serviced the truck’s transmission six months before the accident (and had been brought into the case by Crown as a third-party defendant).

The Kings County jury found that Advanced was 49.5% liable for the accident after trial evidence demonstrated that after servicing and inspecting the truck, it allowed the truck to leave its facility without a required functioning neutral interlock system. Crown was found to be 49.5 % at fault and the driver 1% at fault.

The jury awarded pre-death pain and suffering damages in the sum of $3,000,000 ($1,000,000 for pre-impact terror and $2,000,000 for conscious pain and suffering).

In Vargas v. Crown Container Co., Inc. (2d Dept. 2017), the liability verdict was affirmed but the pain and suffering damages award was reduced to $1,000,000 ($250,000 for pre-impact terror and $750,000 for conscious pain and suffering).

As indicated in the court’s decision, the medical examiner (who performed the autopsy) testified as an expert for the plaintiff that Mr. Morales sustained multiple rib fractures and internal injuries that resulted in his death one or two minutes after impact. Here are additional facts that were adduced regarding the claims for pre-impact terror and conscious pain and suffering:

  • the impact caused blunt trauma to the head and massive crush injuries of the torso including a ruptured diaphragm, fractured sternum, eight rib fractures, an arm fracture and lacerations of the abdominal wall, liver (almost torn in half) and spleen
  • the truck driver held Mr. Morales in his arms at the scene and said: “His eyes were watching me. He was moving his arms.”
  • EMS arrived 10 minutes after impact at which point Mr. Morales was not breathing and had no pulse. He was pronounced dead upon his arrival at a hospital.
  • the defense expert emergency medicine physician opined that the decedent had no time to appreciate that the truck was approaching him and therefore did not suffer any pre-impact terror. Furthermore, the expert opined that the impact and injuries caused massive internal bleeding, the result of which would have been an immediate loss of consciousnesses (since blood flow to the brain is required for consciousness)

Mr. Morales was survived by his wife and their two year old son and the jury awarded loss of parental guidance damages in the sum of $3,000,000 ($2,000,000 past – seven years, $1,000,000 future – 16 years). The appellate court reduced the loss of parental guidance damage award to $1,000,000 ($650,000 past, $350,000 future).

The jury also awarded and the appellate court affirmed loss of earnings damages in the sum of  $1,208,000 ($168,000 past – seven years, $1,040,000 future – 16 years).

Inside Information:

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.

Inside Information:

  • 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.

 

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.

Inside Information:

  • The lawsuit was brought in Queens County based upon the residence of the administrator of the decedent’s estate, his sister.

 

On January 29, 2013, at about 7:30 p.m., Juan Estevez was attempting to cross Sunrise Highway at its intersection with Henry Street in Freeport when he was struck by a left turning vehicle. Mr. Estevez, 64 years old,  sustained massive injuries in and about his head, ribs and sternum. He was pronounced dead at the hospital three hours later after resuscitation efforts failed. He was divorced, retired, lived alone and survived by three adult sons.

Scene of Accident
Scene of the Accident

In the ensuing lawsuit by the decedent’s estate against the driver, a Nassau County jury determined that both the driver and the decedent were at fault for the accident (the driver 22% and the decedent 78%) but that the estate was not entitled to any damages at all for pre-impact terror, pre-death pain and suffering or loss of parental guidance.

In Estevez v. Tam (2d Dept. 2017), the jury verdict was affirmed. The only damages issue on appeal was loss of parental guidance as plaintiff did not challenge the verdict as to either pre-impact terror or pre-death pain and suffering.

Mr. Estevez’s sons were 34, 40 and 44 years old at the time of trial and they testified regarding the tight knit family bond they had with their father and that they talked to him often and strongly relied upon him frequently for guidance. The defendant noted, though, that (a)  each of the sons lived on his own with their own families, (b)  each was self-sufficient (there was no evidence that their father gave them any financial support) and, (c) the sons offered no specific testimony or evidence that they relied upon their father for counsel or guidance. While it appears the appellate court acknowledged that there was some evidence of loss of parental guidance, the court nonetheless affirmed the verdict awarding nothing for this damage claim because the jury was entitled to weigh the testimony on this issue and determine for itself which version preponderated.

As to liability, the defendant claimed he could not have avoided the impact because the decedent was wearing dark clothing, walking outside the crosswalk and against the light (which he and his passengers all testified was green for him and red for pedestrians)  and ran into the side of his car (the driver’s side mirror was knocked off during the incident). He never saw Mr. Estevez before impact and had no indication a pedestrian was involved until he exited his car.

About 18 months before trial, defendant moved for summary judgment dismissing the claims for pre-impact terror and pre-death pain and suffering. The judge denied the motion and allowed the claims to be resolved by a jury at trial in  part because of a statement from the driver that the decedent “looked conscious” at the scene and an affidavit from a passenger that the decedent was moving his left hand while on the ground before taken away by ambulance.

At trial, the renowned pathologist Michael Baden, M.D., testified as an expert for  the defense. He stated that the decedent suffered brain damage and lost consciousness when the car hit him and that any body movement at the scene was not voluntary. The coroner who performed the autopsy testified for the estate and opined that Mr. Estevez experienced a moment of pre-impact terror as well as pre-death conscious pain and suffering. The jury credited the defense expert, awarded nothing for these elements of plaintiff’s claim and the findings were not appealed.

Inside Information:

  • There was some testimony that the decedent babysat a granddaughter on occasion but no testimony that the girl’s father incurred any costs in retaining a replacement babysitter (which could have formed the basis for a loss of services claim).
  • There was a $150,000 settlement offer that was rejected. In summation, plaintiff’s attorney asked the jury to award $900,000 –  $600,000 for the estate’s financial losses, $100,000 for pre-impact terror and $200,000 for pre-death pain and suffering.

 

 

 

On January 24, 2004, Col. (retired) William Gardner sustained fatal injuries when the vehicle he was driving struck and vaulted over an interstate highway’s snow-covered barrier in Syracuse and fell to the street below. We discussed the ensuing lawsuit in previous articles, here and here. In Gardner v. State of New York (4th Dept. 2015) almost all of the damages findings have been affirmed on appeal.

At the damages trial (judge only, no jury), the total award was $3,569,985 which included:

  1. $1,122,150 for loss of financial support for the decedent’s two teenage sons
  2. $1,365,500 for the boys’ loss of inheritance
  3. $825,000 for the boys’ loss of parental guidance
  4. $250,000 for pre-impact terror
  5. $0 for pre-death pain and suffering

The appellate court affirmed the awards for pre-impact terror (based on the testimony of another driver who saw Col. Gardner’s car as he lost control, hit the snowbank and that it took “several seconds” to fall to the street below), loss of parental guidance and future loss of financial support but reduced by $323,000 the awards for past loss of financial support because that’s all the evidence supported. Additionally, the appellate court rejected claimants’ contention that the trial judge erred in using a personal consumption rate of 45% (their expert used a rate of 28.5% while defendant’s used a rate of 95%).

The affirmed parental loss of guidance awards in the sums of $350,000 ($300,000 past – 9 years, $50,000 future – 3 years) for Brandon (28 years old at trial) and $475,000 ($425,000 past – 9 years, $50,000 future – three years) for Ryan (24 years old at trial)  were based upon the testimony of the sons about how involved and supportive their father was in their lives as well as testimony from their mother (to whom Gardner was married for 14 years before they divorced four years before his death) and several of Col. Gardner’s friends. The trial judge specifically noted that the evidence was clear that there was a strong bond between father and sons, Col. Gardner was a role model for them and his advice and guidance would have continued as his sons graduated college and began their careers. The appellate court noted that the children were teenagers but that  courts may even award damages to financially dependent adults.

The trial judge declined to make any award at all for pre-death physical pain and suffering because, even though Col. Gardner may have lived for a short time after impact (as much as a minute or two), “there is no evidence he was conscious upon impact or had some level of awareness of his pain.” This ruling was not appealed.

The defendant appealed trial judge’s periodic method of payment (but not the amount) of the $1,365,000 award for loss of inheritance but the appellate court ruled that CPLR 5041 , the statute requiring a lump sum present value for certain awards, is not applicable in this case.

 

 

 

 

 

 

On December 2, 2009 at about 7 p.m., a woman was walking across the street at the intersection of Avenue U and East 71st Street in Brooklyn. A city bus driver had stopped for a red light before turning right onto Avenue U when his bus struck and killed the pedestrian, 65 year old Virginia McKibbin.

A pedestrian crosses the street in front of a city bus at a downtown crosswalk, Wednesday, July 29, 2009, in Des Moines, Iowa. Responding to a stubborn spate of buses hitting pedestrians, the Des Moines bus system will require drivers to honk every time they turn. And because all of the accidents happened when buses were turning left, drivers now have new routes that allow only right-hand turns downtown. (AP Photo/Charlie Neibergall)

In the ensuing lawsuit against the bus driver and owner, on December 20, 2012,  a Kings County jury apportioned fault for the accident 75 % to the driver and 25% to the pedestrian.

The jury then awarded pecuniary damages to the decedent’s three adult daughters in the sum of $1,200,000 (10 years) but awarded zero for pre-impact terror and zero for conscious pain and suffering.

In Keenan v. Molloy (2d Dept. 2016), the appellate court:

  1. affirmed the jury’s verdict awarding zero damages for pre-impact terror and zero damages for conscious pain and suffering, and
  2. reduced the pecuniary damages award to the principal sum of $600,000 (i.e., $800,000 reduced by 25% for comparative fault).

Under New York law, pecuniary damages may be awarded to a decedent’s children for their monetary losses caused by their parent’s death.  Jurors may not make any award for sorrow, mental anguish, injury to feelings or for loss of companionship. Among the considerations jurors are charged with considering in this regard are (a) the earnings a decedent would have spent in the future for the care and support of her children and (b)  the value of the intellectual, moral and physical training, guidance and assistance their mother would have given them had she lived.

The appellate court determined that $800,000 for pecuniary damages is reasonable in this case based upon the testimony of Ms. McKibbin’s three daughters (who were 39, 42 and 45 years old at the time of trial) as to their loss of parental guidance. All four lived close to one another in Brooklyn, shared Sunday dinners every week and spent a great deal of other time together each week (along with the daughters’ three young children). There was significant unrebutted testimony about how close the daughters and grandchildren were with the decedent, how she provided them all with counseling especially during difficult times and how Ms. McKibbin was “the glue that held their family together.”

There was also evidence that the decedent spent a great deal of time caring for her grandchildren, babysitting for them, cooking for them, having weekend sleep-overs and helping to teach and care for her special needs grandson.

In a post-trial decision, the presiding judge characterized the nature and quality of the relationship between Ms. McKibbin and her family as “exceptional and significant” and stated that her every day involvement with her family could easily support the jury’s $1,200,000 award for loss of parental guidance and support.

Emotional pain and suffering damages for a decedent’s pre-impact terror may be awarded when there is proof that between the moment a decedent realized she was going to be gravely injured and die and the moment she sustained a physical injury:

  • she was aware  of the danger that caused her death,
  • she was aware of the likelihood of grave injury or death, and
  • she suffered emotional distress as a result of her awareness of her impending grave injury or death.

In this case, the defense argued successfully that there should be no award for pre-impact emotional distress because (a) a scream that the bus driver heard at the time of impact may have come from someone other than the decedent and (b) Ms. McKibbin was likely rendered unconscious immediately upon impact. Plaintiff contended that because the accident occurred without witnesses (the bus had no passengers), the only person who could have screamed was the decedent.

Pre-death pain and suffering damages (distinct from emotional distress damages for pre-impact terror) may be awarded for pain and suffering during such time as a decedent was conscious from the moment of injury to the moment of death.

Here, the defendants argued successfully that no award at all should be made as to this aspect of damages because, as opined by their expert trauma physician,  Ms. McKibbin lost consciousness on impact. Plaintiff’s expert opined that when Ms. McKibbin was being run over by the bus “she knew what was happening to her” and she “could feel pain” but he did not offer any opinion as to whether she was conscious when found moments later in the street (“I don’t know.”). A passerby testified  that while Ms. McKibbin was on the ground he heard very shallow breathing, like a small gasp for air, but the defense expert testified that a person exhibiting such so-called agonal breathing who sustained massive trauma like Ms. McKibbin did in this case generally would be unconscious.

Ms. McKibbin was found unconscious by ambulance personnel and confirmed dead on arrival at the hospital 30 minutes after the accident.

Inside Information:

  • Ms. McKibbin had worked for 20 years in a title insurance office earning about $42,000 in her last full year of work in 2008.
  • There was substantial testimony from the daughters about the financial assistance their mother gave to them and their children from time to time for things like rent, utility bills and divorce proceedings. There was no accompanying documentary evidence to support those claims and the only specific testimony in this regard was from one of the daughters who testified that her mother gave her about $1,250 per month.
  • In his summation, plaintiff’s counsel, Christopher Meagher, asked the jury to award $1,000,000 for pecuniary damages sustained by the decedent’s three adult daughters (two divorced, one never married) who, he said, lived in a solar system that revolved around their mother. Exercising their prerogative, the jury determined that this item of damage exceeded counsel’s request.
  • With the 25% reduction for comparative fault, the jury’s award was reduced to $900,000. While the appellate court then reduced the gross award to $800,000 – with the result being a net award of $600,000 – the award remains quite significant and at the high end of such awards to adult children in New York wrongful death cases.

 

 

We discussed the nearly $15,000,000 damages award in the fatal motor vehicle crash case of 28 year old Jason M. Rhoades in an article published on December 3, 2013, here. As we predicted, the defendant appealed arguing that the loss of parental guidance awards were excessive and that the loss of inheritance awards were improper.

Last week, the appellate court ruled in Grevelding v. State of New York  (4th Dept. 2015) and held that the loss of parental guidance awards were excessive but that the loss of inheritance awards were reasonable and proper.

In addition, the court rejected the defendant’s argument that the entire damages award should have been reduced by an apportionment of some liability on the basis of decedent driver’s comparative fault.

The loss of parental guidance awards for the decedent’s son Luke (two years old at the time of his father’s death, 11 at trial) in the sum of $2,000,000 ($900,000 past – 9 years, $1,100,000 future – 7 years) were reduced by $600,000 and now stand at $1,400,000 ($500,000 past , $900,000 future).

The loss of parental guidance awards for the decedent’s daughter Amelia (two months old at the time of her father’s death, 9 at trial) in the sum of $2,200,000 ($900,000 past – 9 years, $1,300,000 future – 9 years) were reduced by $700,000 and now stand at $1,500,000 ($500,000 past, $1,000,000 future).

While the loss of parental guidance award reductions are significant, the modified awards remain among the highest allowed by the appellate courts in New York. The judges were apparently influenced by substantial testimony that Mr. Rhoades was by all accounts an exemplary father who came home every day at 5:30 p.m. and took over responsibility for his two young children and that he and his son were “inseparable.”

The $1,603,306 awards of damages for loss of inheritance were based upon expert testimony projecting (1) a savings rate of 2% of Rhoades’ income and (2) an investment growth rate of 8.2%.

The defense argued on appeal that the loss of inheritance awards should be vacated because they were duplicative of the $8,728,980 awarded to decedent’s spouse and children for their loss of his past and future income, support and household services. The court rejected that argument since it has long been held and is routinely explained to juries by trial judges that the monetary damages to a decedent’s distributees (here, his wife and two children) include both the portion of decedent’s earnings he would have spent in the future for their care and support and the amount if any that would have been inherited by them.

Inside Information:

  • Neither party appealed with regard to the issues of the amounts of damages awarded for pre-impact terror ($250,000) or loss of income, support and household services ($8,728,980).
  • Mr. Rhoades suffered the tragic death of both of his parents when he was 17 years old. Thereafter, he lived by himself in an apartment while he finished high school. Then, he completed a bachelor’s degree at Syracuse University in less than three years and an MBA at LeMoyne College in just one year, all while holding down jobs in the telecommunications industry.
  • The issue of damages in the wrongful death case of Gardner v. State of New York, involving another fatal motor vehicle crash at the same site just 36 hours after this accident  (about which we also wrote in our December 3, 2013 article), is the subject of an appeal set for oral argument in the 4th Department on December 7, 2015.

 

 

On January 23, 2004, Jason Rhoades sustained fatal injuries when the vehicle he was driving slid across the roadway over a bridge on Interstate 81 in Syracuse, struck a snowbank packed against the concrete barrier guard at the edge of the bridge, and his car vaulted off the bridge to the road below.

Thirty-six hours later, William Gardner also sustained fatal injuries when he drove along the same roadway, struck the same barrier, vaulted over the snow-covered concrete barrier and fell to the street below.

Scene from Trial Exhibit

Jason Rhoades was married to Isabelle Rhoades and the father of their two young children (two year old Luke and two month old Isabella) when he died at the age of 28. He had been elected East Syracuse mayor at the age of 24 and was a director of communications products and information technology at Cornell University earning $142,424 a year.

William Gardner was married for 14 years to Cynthia Gardner before they divorced in 2000.  He was the father of their two children (19 year old Brandon and 15 year old Ryan) when he died at the age of 50. He had served in the United States Air Force for 25 years attached to the space program before retiring in 2001 as a full colonel. Then, he worked as a project manager in space technology at Jet Propulsion Laboratory at California Institute of technology in Pasadena, California earning $155,584 a year (plus an Air Force pension of $45,454 a year).

Each of the families asserted claims against the State for personal injuries and economic damages for wrongful death. In both matters, the Court of Claims judge in Syracuse (Diane L. Fitzpatrick) found that the State was not liable for these single car accidents and she dismissed the lawsuits after trial; however in each case, the judge’s decision on liability was reversed by the appellate court.

In both Grevelding v. State of New York (4th Dept. 2012) [Peter Grevelding is the named claimant as he was the executor of the estate of Mr. Rhoades, his nephew] and Gardner v. State of New York (4th Dept. 2010), liability against the State was imposed by the appellate court because the State, by its plowing methods, created the snowbank which constituted a dangerous condition and was a substantial cause of the accident.

New trials were ordered to determine the amount of damages. The damages trials were held in 2012 and 2013 and the judge’s decisions in each of those damages trials have now been handed up.

In the decision following the damages trial in Grevelding (Court of Claims 9/30/13), damages were awarded in the total sum of $14,797,888 and in the decision following the damages trial in Gardner (Court of Claims 11/19/12), damages were awarded in the total sum of $3,569,985. Both cases are still pending, with collateral source and so-called Article 50-B hearings required and appeals expected from all parties.

Each of the cases involved substantial economic damages (as well as claims for pre-death personal injury and loss of parental guidance).

In Grevelding, the economic damages were $10,347,888, as follows:

  • Funeral Expenses – $15,602
  • Loss of Income, Support and Household Services – $8,728,980
  • Loss of Inheritance – $1,603,306

In Gardner, the economic damages were $2,494,985, as follows:

  • Funeral Expenses – $6,985
  • Loss of Financial Support – $1,122,500
  • Loss of Inheritance – $1,365,500

The pre-death personal injury claims in each case were hard fought and involved gruesome evidence.

In Grevelding, the judge awarded $250,000 for pre-impact terror based on testimony from witnesses and several experts for both sides, including the county coroner who examined Mr. Rhoades. He opined that Mr. Rhoades lived for one to two minutes struggling to breathe after the impact fractured his neck and  before he died in his vehicle due to asphyxiation. Dr. Michael Baden, world renowned formed New York City Medical Examiner, testified for the defense. He agreed with claimant’s position that the cause of death was multiple blunt force trauma however he contended that Mr. Rhoades did not asphyxiate but was rendered immediately unconscious from the injuries to his brain and lungs.

The judge declined to make an award for pre-death physical pain and suffering finding that although Mr. Rhoades may have lived, breathing and heart beating for a moment or two after impact, there is “no direct  or circumstantial evidence that he was conscious.” Nonetheless, she awarded the $250,000 for pre-impact terror based on her inference that Mr. Rhoades, “as he approached the top of the snowbank without stopping,” likely endured “more than two seconds” of acute fear of death or serious harm.

In Gardner, the judge also awarded $250,000 for pre-impact terror. She based the award on the testimony of another driver who saw Col. Gardner’s car as he lost control, hit the snowbank and fall to the street below. The judge concluded that “several seconds” transpired from the moment Col. Gardner’s car hit the median barrier, left the bridge railing and landed on the street below. In this case, too, the judge declined to make any award at all for pre-death physical pain and suffering because, even though Col. Gardner may have lived for a short time after impact (as much as a minute or two), “there is no evidence he was conscious upon impact or had some level of awareness of his pain.”

The parental loss of guidance awards were substantial in both cases and involved poignant testimony about the relationships between and among the deceased fathers and their children.

In Grevelding, the judge awarded $2,000,000 ($900,000 past – 9 years, $1,100,000 future –  7 years) for Luke (11 years old at trial) plus $2,200,000 ($900,000 past – 9 years, $1,300,000 future –  9 years) for Amelia (2 years old at trial). These awards were based upon the testimony of several witnesses who described Mr. Rhoades’ “enveloping love for his children and daily involvement in their care and development,” as well as the expert testimony from a psychologist with a doctorate in human development and family studies who discussed the impact of the loss of a father on his children.

In Gardner, the judge awarded $350,000 ($300,000 past – 9 years, $50,000 future – 3 years) for Brandon (28 years old at trial) plus $475,000 ($425,000 past – 9 years, $50,000 future 3 years) for Ryan (24 years old at trial). These awards were based upon the testimony of the sons about how involved and supportive Col. Gardner was in their lives as well as testimony from their mother and several of Col. Gardner’s friends. The judge specifically noted that the evidence was clear that there was a strong bond between father and sons, Col. Gardner was a role model for them and his advice and guidance would have continued as his sons graduated college and began their careers.

Inside Information:

  • So-called loss of parental guidance damages are deemed recoverable in New York by virtue of Estates, Powers and Trusts Law Section 5-4.3. While the statute merely refers to “pecuniary injuries resulting from the decedent’s death,” the courts have for more than one hundred years held that the word “pecuniary” includes injuries arising to children from the loss of a parent, who owes them a duty of nurture, and of intellectual, moral and physical training.
  • In Gardner, the defense urged a modest award, if any, for loss of parental guidance, contending that “Brandon and Ryan had already substantially received the benefit of their father’s advice and guidance before he died, during the most important formative years of their development.”

UPDATE: Some of the damages awards were modified in the October 9, 2015 appellate court decision in Grevelding v. State of New York, discussed here.