Wrongful Death Damages

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.

The purpose of punitive damages in personal injury lawsuits is to act as a punishment to the offensive defendant and as a deterrent or warning to others. They  are awarded in addition to the plaintiff’s compensatory damages (i.e., pain and suffering, loss of earnings and medical expenses); however, they are only available when a defendant’s conduct has a high degree of moral culpability and manifests a conscious or reckless disregard for the rights of others.

Punitive damages are controversial. For example,  Ted Frank at Overlawyered discusses the issues surrounding tax deductions for punitive damage payments here and law school professors Edward Cheng (Brooklyn) and Albert Yoon (Toronto) discuss their unpredictability at TortsProf Blog here.

The most recent appellate court decision in New York to deal with punitive damages is Frankson v. Brown & Williamson Tobacco Corp., a smoker’s wrongful death lawsuit, in which the decedent’s estate was awarded $20,000,000 in punitive damages. That award was vacated this week and a new trial ordered.

It all began in 1954, when Harry Frankson, then 13 years old, started smoking unfiltered Lucky Strike cigarettes. Within a year, he was up to a pack a day. After 44 years, he died of lung cancer. There was never a question as to what caused his death – cigarette smoking – but when on July 24, 2000 his widow sued the cigarette maker and others, there was a big question as to whether anyone but Harry bore responsibility for his own death.

After a trial in Brooklyn, New York, the jury on December 18, 2003 found that both Harry and the defendants were at fault (50% each) and that his estate was entitled to compensatory damages of $350,000 ($150,000 pre-death pain and suffering, $200,000 widow’s loss of services) before apportionment for comparative fault.

Two weeks later, after a separate hearing, the same jury found defendants liable for punitive damages in the sum of $20,000,000. They based their award on their conclusion that the defendants had wantonly, recklessly, maliciously and fraudulently concealed the health risks of smoking (until 1969 when government warnings became the law).

In a post-trial decision, here, the judge found that the 57 to 1 ratio of punitive damages to compensatory damages was neither sensible nor fair and that $5,000,000 (a 14 to 1 ratio) was far more fitting and fair.

Defendants appealed, arguing that the reduced $5,000,000 punitive damages figure was still unfair, indeed constitutionally impermissible, and that the jury was not properly instructed that it could not award punitive damages to punish the defendants for harm to smokers other than Mr. Frankson. The appellate court, here, rejected the defendants’ arguments and upheld the $5,000,000 punitive damages award.

Then, the United States Supreme Court ruled in 2007 in Phillip Morris USA v. Williams that the 14th Amendment’s due process clause forbids a state from using punitive damages to punish a defendant for injury that it inflicts on non-parties. That’s just what the defendants complained of in Frankson – that the trial judge refused their request to instruct the jury that they could not impose punitive damages for injuries to anyone other than the plaintiff Mr. Frankson. Reaction to this decision, though, was mixed, with some who favor curtailing punitive damages wondering whether the high court judges were finding laws in the constitution that simply do not exist (e.g., Point of Law,here).

Plaintiff’s attorney in Frankson v. Brown & Williamson Tobacco Corp. had argued at trial (improperly as the appellate court later ruled) that the jury should send a message not just to the defendants but to corporate America, that the tobacco industry knew it would expose millions of people to carcinogens resulting in lung cancer and death and that the defendants caused not just Mr. Frankson’s death but also the deaths of thousands of others.

So now this case will go back to the trial court for a new hearing on punitive damages. This time the jury will be given proper instructions and specifically told that it may not impose punitive damages for injuries to anyone other than Mr. Frankson.

Inside Information:

  • The U.S. Supreme court has addressed the issue of punitive damages several times in recent years, expressing its displeasure with the unpredictability of such awards.
  • In another case decided after the Frankson trial, Exxon Shipping Co. v. Baker (2008), the high court reiterated that its declaration in State Farm v. Campbell (2003) that no more than a single-digit ratio of punitive to compensatory damages (i.e., 1 to 1) is constitutional in all but the most exceptional cases. Anything higher than that, the court suggested, would  violate the due process clause which prohibits the imposition of grossly excessive or arbitrary punishments on a civil lawsuit defendant.
  • The high court’s suggested formula would leave the Frankson estate with only $350,000 in punitive damages to go with the $350,000 of compensatory damages.

We will follow the Frankson case as it reaches trial again and we will follow our nation’s highest court as it revisits the issue of punitive damages and their constitutional limits.

A 27 year old man, Starsky Garcia, was shot to death in the parking lot of a North Miami Beach parking lot two years ago. The Miami Herald reports that the shooter has never been found but the family hired The Haggard Law Firm in Coral Gables who sued the apartment owners for their negligence.

Now, a Florida jury verdict has held the apartment complex managers and owners were liable for inadequate security and awarded  the decedent’s family $8,000,000 in wrongful death damages

even though the shooter was never caught like the perp was in the photo here!

Florida personal injury attorneys Paige Tropp & Ameen note that the defendants should have implemented proper safety measures to prevent this crime, especially in view of many other recent crimes at Florida apartment complexes.

Unlike in New York, Florida law permits a jury to award survivors loss of companionship damages.  About 30 states allow damages for loss of consortium or loss of companionship in their wrongful death laws. In New York, though, this element of damages is forbidden and juries here are not permitted to award damages suffered by the survivors for their emotional loss. Every year since 1995, there have been failed legislative efforts in New York to get the law changed.

So how come there are still many large wrongful death verdicts and settlements in New York? That’s because the permitted damages here include loss of earnings (imagine the tragic death of a young person earning six figures and multiply that out for his expected work life years and the verdict can get into the millions very quickly).

And then there’s pre-death pain and suffering. This too can be a huge number but the claim is rife with difficulties for the heirs. First, there’s the requirement that the decedent was conscious and actually suffered before he died. Second, there’s the difficulty of evaluating the proper amount for this claim.

In Glaser v. County of Orange (2d Dept. 2008), the estate of a 50 year old man was awarded $350,000 for pain and suffering after a car accident that resulted in his death at the scene. The jury returned a verdict in the sum of $1,000,000 an amount the appellate court found was too high because the plaintiff’s medical expert testified that the decedent was conscious for no more than two to three minutes after his windshield was struck by a rear axle that came loose from the defendant’s dump truck and struck the decedent’s windshield and he was pronounced dead 15 minutes after the crash.

The Glaser family was faced with long-standing law in New York that to recover for pre-death pain and suffering the estate bears the burden of proving that a decedent suffered conscious pain and suffering – some level of awareness –  following the accident. In the Glaser case, the appellate court was clearly swayed by testimony of witnesses on the scene that the decedent was not moving and exhibited no outward signs of pain.

The court was also influenced by its own 2007 decision in Bennett v. Henry (2d Dept. 2007) in which it determined that it would not disturb a jury award of $400,000 for pre-death pain and suffering of a 74 year old woman killed in a car accident. There, witnesses testified that they observed the decedent to be breathing at the scene, in pain and making sounds. She was not pronounced dead until 10 hours later at the hospital.