Summary
reducing jury award from $1,500,000 to $100,000 where decedent's pre-impact terror was limited to a few seconds; he may not have been conscious after impact; and he survived for only 16 to 27 minutes after the accident
Summary of this case from Stankiewicz v. UrbanOpinion
June 23, 1997
Appeal from the Supreme Court, Queens County (Polizzi, J.).
Ordered that the order is modified, on the law, by deleting therefrom the words "$50,000 for pecuniary loss to Vincenzo Donofrio and $100,000 for pecuniary loss to Carmen Donofrio" and substituting therefor the words "$83,333 for pecuniary loss to Vincenzo Donofrio and $166,667 for pecuniary loss to Carmen Donofrio"; as so modified, the order is affirmed, without costs or disbursements.
This action arises from a single vehicle accident which occurred when the defendant's son, the driver, lost control of the vehicle, which was traveling at a speed of 70 to 75 miles per hour, while attempting to negotiate a curve on the Cross Island Parkway, and crashed into a tree. The only eyewitness to testify at trial explained that just before the impact, the car swerved out of its lane, went out of control, and started fishtailing; then, "it looked like the wheels caught the curb and the car just shot like a slingshot right * * * past the overpass", and hit the tree within a second. The witness estimated that seven to ten seconds elapsed between the time that the car first sped past him and its collision with the tree. While the driver apparently lost consciousness upon impact, the passenger, the decedent herein, was heard moaning and groaning shortly after the impact, and was declared dead within 20 to 30 minutes.
The trial court properly exercised its discretion in conditionally reducing the jury award for conscious pain and suffering, which included preimpact terror. As the court found, the duration within which the decedent could have experienced any preimpact terror was limited to only several seconds, which warrants, at best, a minimal award ( see, Shu-Tao Lin v. McDonnell Douglas Corp., 742 F.2d 45; cf., Shatkin v. McDonnell Douglas Corp., 727 F.2d 202). Moreover, while the decedent did suffer severe and massive injuries, his degree of consciousness is uncertain, and any period of consciousness was limited in duration, thus warranting the conditional reduction of the award for conscious pain and suffering, which materially deviated from what would otherwise be reasonable compensation ( see, CPLR 5501 [c]; see, Portaro v. Gerber, 217 A.D.2d 539; Higgins v. State of New York, 192 A.D.2d 821; Dontas v. City of New York, 183 A.D.2d 868; Tenczar v. Milligan, 47 A.D.2d 773).
Finally, while the 18-year-old decedent, who worked in the family business, lived with his parents, and cared for his younger sibling, was described as a wonderful, loving son who was especially helpful around the home, the trial court properly concluded that the jury award for pecuniary loss was excessive. We find, however, that the amount of damages should have been reduced only to the extent indicated above ( see, Costarelli v. Gurino, 170 A.D.2d 431).
Miller, J.P., Sullivan, Joy and Altman, JJ., concur.