Robert S. Kelner and Gail S. Kelner
Robert S. Kelner and Gail S. Kelner (NYLJ/Rick Kopstein)

The decision of the Appellate Division, First Department, earlier this month in the catastrophic 91st St. crane collapse case should have a significant impact on the analysis of damages in wrongful death actions. In addressing issues of liability and damages arising out of two wrongful death actions in Matter of 91st Street Crane Collapse Litigation, 2017 NY Slip Op 06419, 2017 WL 4003161 (1st Dept. Sept. 12, 2017), Justice Troy Webber, writing for a unanimous panel, described the unimaginable horror of these two decedents’ last minutes. Even though the jury awards were reduced, the Appellate Division allowed very significant amounts for their preimpact terror as the giant crane collapsed, and for their conscious pain and suffering after sustaining catastrophic injuries. Based upon defendants’ inexcusable actions which proximately caused this accident, the court also found very significant punitive damages to be merited.

This decision should encourage more vigorous examination of damages for preimpact terror and conscious pain and suffering in future wrongful death cases. Although the most commonly discussed element of damages in a wrongful death action has generally been the pecuniary loss to the next of kin, this case will certainly cause re-examination and re-evaluation of the horrific last minutes of a person’s life as a result of negligence.

Facts in the Crane Case

The facts were extensively discussed in the Appellate Division decision. The tower of the immense crane which toppled was over 200 feet high. The cab, in which plaintiff Leo’s decedent, Donald Leo, as the operator, was sitting, as well as the 160-foot boom and the counterweight arm that extended in the opposite direction from the boom, all rested upon a turntable assembly that connected them to the tower while allowing them to rotate. One of the main components of the turntable assembly was a 69-inch diameter bearing ring that effectuated the assembly rotation. Sometime in 2007, before being used at the accident site, the crane’s bearing ring developed a crack while being used at another site. In order to save money and expedite replacement of the ring, defendants did not order it from the manufacturer but rather found a Chinese company, RTR Bearing Company, through an Internet search, which would produce it cheaply and more quickly. The individual defendant, James Lomma, admitted that if the ring failed, the results would be catastrophic. The Chinese company itself initially expressed its concern that it did not have confidence in its welding technique but finally agreed to produce it. There were multiple issues with the weld. Indeed, defendants learned another crane had a problem because of a bad weld by this same company, but proceeded nonetheless. The failure of the ring and the weld were ultimately found to be precipitating factors in this tragedy.

At trial, the jury awarded plaintiff Leo $7.5 million for preimpact terror and $8 million for the pain and suffering of her decedent, and $24 million in punitive damages. The damages were reduced by the First Department to $2.5 million for preimpact terror, $5.5 million for conscious pain and suffering and $8 million in punitive damages. The jury awarded the family of decedent Kurtaj, who was crushed by the falling crane, $7.5 million for preimpact terror, $24 million for pain and suffering, and $24 million in punitive damages. The damages were reduced by the First Department to $2 million for preimpact terror, $7.5 million for conscious pain and suffering and $9.5 million for punitive damages.

Damages for Pre-impact Terror

In her decision, Justice Webber stated that preimpact terror is considered a sub-category of conscious pain and suffering in a wrongful death case. Damages for preimpact terror cover that time period when decedent first appreciated the danger which ultimately resulted in death and the moment that physical injury was sustained. In assessing damages, preimpact terror and post-injury conscious pain and suffering have frequently been analyzed as separate items of damages. It is possible that either, or both, or neither, will be an element of damages in any given wrongful death case.

The elements of preimpact terror in a wrongful death case are discussed in New York Pattern Jury Instructions-Civil 2:320 which provides:

Damages for pre-impact terror are designed to compensate the decedent’s estate for the fear the decedent experienced during the interval between the moment the decedent appreciated the danger resulting in the decedent’s death and the moment the decedent sustained a physical injury as a result of the danger. NYPattern Jury Instr.-Civil 2:320 Caveat 3.

Plaintiff must establish that (1) decedent was aware of the danger causing his or her grave injury or death; (2) was aware of the likelihood of grave injury or death and (3) suffered emotional distress as a result of this awareness. (NY PJI: Civil 2:320)

The duration of time and the level of consciousness are important in assessing preimpact terror and conscious pain and suffering. For example, in Donofrio v. Montalbano, 240 A.D.2d 617 (2d Dept. 1997), which involved a single car accident, the court found that the preimpact terror was limited to only several seconds. Decedent sustained massive injuries and his degree of consciousness after impact was uncertain and thus, conscious pain and suffering was limited as well. The jury award for conscious pain and suffering and preimpact terror was reduced from $1.5 million to $100,000.

Frequently, the duration of time for preimpact terror is short and proving decedent’s perception of danger during that brief interval may be challenging. In Lang v. Bouju, 245 A.D.2d 1000 (3d Dept. 1997), plaintiff’s decedent was a motorcyclist who was struck and killed by a truck. He died on impact, so there was no award for conscious pain and suffering. However, plaintiff was awarded $100,000 for decedent’s preimpact terror, which was seconds at most. In McKenna v. Reale, 137 A.D.3d 1533 (3d Dept. 2016), plaintiff’s decedent was a bicyclist struck and killed by a motor vehicle. Defendant was unable to prove on motion that decedent was unaware of the impending collision. As such, the court held preimpact terror was a question for the jury. In Boston v. Dunham, 274 A.D.2d 708 (3d Dept. 2000), the record supported a claim for damages for preimpact terror where a witness saw a surprised look on decedent’s face just prior to impact. However, there was no support for the claim for conscious pain and suffering, as a witness indicated that decedent was unresponsive after impact.

Conscious Pain and Suffering and Post-Impact Fear of Death

Proving conscious pain and suffering and fear of impending death in the interval after injury is sustained frequently requires the use of experts, especially when the injuries are so severe that the level of consciousness and perception of pain is an issue. In Regan v. Long Is. R.R. Co., 128 A.D.2d 511, 512 (2d Dept. 1987), the court addressed the elements of proof for conscious pain and suffering in a wrongful death case, stating:

In determining damages for conscious pain and suffering experienced in the interval between injury and death, when the interval is relatively short, the degree of consciousness, severity of pain, apprehension of impending death, along with duration, are all elements to be considered.

In Regan, a 15-year-old was electrocuted, engulfed in flames and sustained burns on more than 75 percent of his body. He survived for five days. The pecuniary loss award was nominal because he was a student who neither supported his parents nor contributed to the household. However, his estate was awarded damages for his conscious pain and suffering. The court aptly stated: “While the interval between injury and death was relatively short, and the decedent’s suffering may have been measured in days, it was the ordeal of a lifetime for which the appellant must be held responsible.” Id. at 512. And yet, despite the lofty language, only $275,000 was awarded and then reduced for decedent’s comparative negligence to $110,000.

In Sanchez v. City of New York, 97 A.D.3d 501 (1st Dept. 2012), plaintiff retained an expert, recognizing that the claim for conscious pain and suffering required proof that the injured person experienced “some level of cognitive awareness following the injury.” Cognitive awareness and the length of time are key in proving damages. Although the jury did not award damages for conscious pain and suffering, the First Department awarded $400,000 for this claim.

The burden of proof may be significant in proving conscious pain and suffering. In Cummins v. County of Onondaga, 84 N.Y.2d 322 (1994), at trial plaintiffs failed to meet their threshold burden of proving consciousness for some period of time following an accident to justify an award of damages for pain and suffering. Decedent’s car went into a pond. No one heard decedent or saw her move after the accident. She was deceased when extricated from the car. Plaintiff’s expert was unable to provide testimony to support the contention that she was conscious when the vehicle entered the water.

However, in Rice v. Corasanti, 122 A.D.3d 1374 (4th Dept. 2014), defendant sought in a pretrial motion to dismiss plaintiff’s claim for decedent’s conscious pain and suffering, preimpact terror and punitive damages. Although defendant submitted evidence that decedent was unconscious when found at the scene, his submissions failed to address the interval immediately after impact until decedent was found by witnesses. He did not establish as a matter of law that decedent did not see the vehicle which struck him prior to impact. Defendant had the burden of proof on the motion and failed to establish entitlement to dismissal of these claims as a matter of law.

Damage awards for conscious pain and suffering have varied in these types of cases. In Ramos v. La Montana Moving & Storage, 247 A.D.2d 333 (1st Dept. 1998), plaintiff’s decedent was killed by an intoxicated driver. He lived for 15 to 30 minutes after suffering crush injuries. The jury awarded $3 million for conscious pain and suffering, which was reduced by the trial judge to $250,000 and increased by the Appellate Division to $900,000. In Dowd v. NYCTA, 78 A.D.3d 884 (2d Dept. 2010), conscious pain and suffering was reduced from $1,750,000 to $1,200,000 where decedent was struck by a bus. She was conscious at the scene, went into cardiac arrest 18 minutes later, was revived and then died at the hospital 90 minutes after impact.

Where evidence is speculative, there may be no award of damages for preimpact terror or conscious pain and suffering. In Phiri v. Joseph, 32 A.D.3d 922 (2d Dept. 2006), decedent was pronounced dead at the scene. The court found there was no evidence of preimpact terror or conscious pain and suffering. See also Anderson v. Rowe, 73 A.D.2d 1030 (4th Dept. 1980) (decedents were killed instantly and there was no evidence of preimpact terror) and Kevra v. Vladagin, 96 A.D.3d 805 (2d Dept. 2012)(conjecture and speculation are insufficient to sustain a cause of action for damages for conscious pain and suffering).

Appellate Division Decision in the Crane Case

In addressing the damage awards in Matter of 91st Street Crane Collapse Litigation, Justice Webber wrote for the unanimous bench: “The evidence supported the jury’s findings that Leo and Kurtaj both endured inconceivable preimpact terror.”

She stated that the evidence showed that the crane teetered and then fell backward from a height of 200 feet and finally crashed onto decedent Kurtaj. Decedent Leo was trapped in the glass cab. Witnesses testified that Leo was aware of his impending death and described the panic and fear on his face. They observed a series of hand movements and “putting his hands together as if praying.” They established that he was trying to brace himself even after his arms and legs were broken. Decedent Kurtaj saw the crane coming down. A medical expert opined based upon defensive injuries to his forearm, that he was aware of the crane collapsing on him and tried to protect himself from the falling crane and debris by raising his right hand to shield himself. This caused a cracking of his right wrist and the fracturing of his right leg as he became trapped in the debris.

In deciding the preimpact terror awards, the First Department did not discuss the specific period of time over which the decedents experienced their unimaginable terror before sustaining fatal injuries. That human suffering was not reduced to seconds or minutes and a calculation based on the time of suffering was a significant aspect of the decision analyzing preimpact terror. The First Department reduced the jury awards to each plaintiff of $7.5 million for preimpact terror to $2.5 million for Leo and $2 million for Kurtaj.

In determining the damages for the conscious pain and suffering of decedent Leo, the court considered the period of time he was conscious after sustaining multiple fractures to his arms and legs, and blunt trauma with near-complete decapitation. It stated that the fractures to his arms and legs indicated he was aware of his situation and tried to brace himself. The EMS technician reported him alive and conscious for approximately seven minutes after the accident. He died nine minutes after that. The court found that the jury award of $8,000,000 deviated from reasonable compensation and reduced it to $5.5 million. This was far greater than damages allowed in earlier awards, such as Ramos, 247 A.D.2d 333, with its award of $900,000 for 15 to 30 minutes of “excruciating crush injuries,” and Perez v. St. Vincents Hosp & Med Center of NY, 66 A.D.3d 663 (2d Dept. 2009), which awarded reduced damages for conscious pain and suffering of $800,000.

With respect to decedent Kurtaj, the court reduced the damages award for conscious pain and suffering from $24 million to $7.5 million. He was observed to be in excruciating pain from the time the crane collapsed until he died four hours later. The court declined to reduce the award to the level of damages in cases such as Dowd v. NYCTA, 78 A.D.3d 884 (2d Dept. 2010) ($1.2 million) and Lubecki v. City of New York, 304 A.D.2d 224 (1st Dept. 2003) ($3 million for approximately one hour). Justice Webber, in her opinion, expressed the belief that the inconceivable pain and suffering to decedent Kurtaj demanded a variance from prior awards.

Without a doubt, the damages affirmed in Matter of 91st Crane Collapse Litigation for preimpact terror and conscious pain and suffering represent new plateaus for these types of damages in New York.

The decision of the Appellate Division, First Department, earlier this month in the catastrophic 91st St. crane collapse case should have a significant impact on the analysis of damages in wrongful death actions. In addressing issues of liability and damages arising out of two wrongful death actions in Matter of 91st Street Crane Collapse Litigation, 2017 NY Slip Op 06419, 2017 WL 4003161 (1st Dept. Sept. 12, 2017), Justice Troy Webber, writing for a unanimous panel, described the unimaginable horror of these two decedents’ last minutes. Even though the jury awards were reduced, the Appellate Division allowed very significant amounts for their preimpact terror as the giant crane collapsed, and for their conscious pain and suffering after sustaining catastrophic injuries. Based upon defendants’ inexcusable actions which proximately caused this accident, the court also found very significant punitive damages to be merited.

This decision should encourage more vigorous examination of damages for preimpact terror and conscious pain and suffering in future wrongful death cases. Although the most commonly discussed element of damages in a wrongful death action has generally been the pecuniary loss to the next of kin, this case will certainly cause re-examination and re-evaluation of the horrific last minutes of a person’s life as a result of negligence.

Facts in the Crane Case

The facts were extensively discussed in the Appellate Division decision. The tower of the immense crane which toppled was over 200 feet high. The cab, in which plaintiff Leo’s decedent, Donald Leo, as the operator, was sitting, as well as the 160-foot boom and the counterweight arm that extended in the opposite direction from the boom, all rested upon a turntable assembly that connected them to the tower while allowing them to rotate. One of the main components of the turntable assembly was a 69-inch diameter bearing ring that effectuated the assembly rotation. Sometime in 2007, before being used at the accident site, the crane’s bearing ring developed a crack while being used at another site. In order to save money and expedite replacement of the ring, defendants did not order it from the manufacturer but rather found a Chinese company, RTR Bearing Company, through an Internet search, which would produce it cheaply and more quickly. The individual defendant, James Lomma, admitted that if the ring failed, the results would be catastrophic. The Chinese company itself initially expressed its concern that it did not have confidence in its welding technique but finally agreed to produce it. There were multiple issues with the weld. Indeed, defendants learned another crane had a problem because of a bad weld by this same company, but proceeded nonetheless. The failure of the ring and the weld were ultimately found to be precipitating factors in this tragedy.

At trial, the jury awarded plaintiff Leo $7.5 million for preimpact terror and $8 million for the pain and suffering of her decedent, and $24 million in punitive damages. The damages were reduced by the First Department to $2.5 million for preimpact terror, $5.5 million for conscious pain and suffering and $8 million in punitive damages. The jury awarded the family of decedent Kurtaj, who was crushed by the falling crane, $7.5 million for preimpact terror, $24 million for pain and suffering, and $24 million in punitive damages. The damages were reduced by the First Department to $2 million for preimpact terror, $7.5 million for conscious pain and suffering and $9.5 million for punitive damages.

Damages for Pre-impact Terror

In her decision, Justice Webber stated that preimpact terror is considered a sub-category of conscious pain and suffering in a wrongful death case. Damages for preimpact terror cover that time period when decedent first appreciated the danger which ultimately resulted in death and the moment that physical injury was sustained. In assessing damages, preimpact terror and post-injury conscious pain and suffering have frequently been analyzed as separate items of damages. It is possible that either, or both, or neither, will be an element of damages in any given wrongful death case.

The elements of preimpact terror in a wrongful death case are discussed in New York Pattern Jury Instructions-Civil 2:320 which provides:

Damages for pre-impact terror are designed to compensate the decedent’s estate for the fear the decedent experienced during the interval between the moment the decedent appreciated the danger resulting in the decedent’s death and the moment the decedent sustained a physical injury as a result of the danger. NYPattern Jury Instr.-Civil 2:320 Caveat 3.

Plaintiff must establish that (1) decedent was aware of the danger causing his or her grave injury or death; (2) was aware of the likelihood of grave injury or death and (3) suffered emotional distress as a result of this awareness. (NY PJI: Civil 2:320)

The duration of time and the level of consciousness are important in assessing preimpact terror and conscious pain and suffering. For example, in Donofrio v. Montalbano , 240 A.D.2d 617 ( 2d Dept. 1997 ) , which involved a single car accident, the court found that the preimpact terror was limited to only several seconds. Decedent sustained massive injuries and his degree of consciousness after impact was uncertain and thus, conscious pain and suffering was limited as well. The jury award for conscious pain and suffering and preimpact terror was reduced from $1.5 million to $100,000.

Frequently, the duration of time for preimpact terror is short and proving decedent’s perception of danger during that brief interval may be challenging. In Lang v. Bouju , 245 A.D.2d 1000 ( 3d Dept. 1997 ) , plaintiff’s decedent was a motorcyclist who was struck and killed by a truck. He died on impact, so there was no award for conscious pain and suffering. However, plaintiff was awarded $100,000 for decedent’s preimpact terror, which was seconds at most. In McKenna v. Reale , 137 A.D.3d 1533 ( 3d Dept. 2016 ) , plaintiff’s decedent was a bicyclist struck and killed by a motor vehicle. Defendant was unable to prove on motion that decedent was unaware of the impending collision. As such, the court held preimpact terror was a question for the jury. In Boston v. Dunham , 274 A.D.2d 708 ( 3d Dept. 2000 ) , the record supported a claim for damages for preimpact terror where a witness saw a surprised look on decedent’s face just prior to impact. However, there was no support for the claim for conscious pain and suffering, as a witness indicated that decedent was unresponsive after impact.

Conscious Pain and Suffering and Post-Impact Fear of Death

Proving conscious pain and suffering and fear of impending death in the interval after injury is sustained frequently requires the use of experts, especially when the injuries are so severe that the level of consciousness and perception of pain is an issue. In Regan v. Long Is. R.R. Co. , 128 A.D.2d 511, 512 ( 2d Dept. 1987 ) , the court addressed the elements of proof for conscious pain and suffering in a wrongful death case, stating:

In determining damages for conscious pain and suffering experienced in the interval between injury and death, when the interval is relatively short, the degree of consciousness, severity of pain, apprehension of impending death, along with duration, are all elements to be considered.

In Regan, a 15-year-old was electrocuted, engulfed in flames and sustained burns on more than 75 percent of his body. He survived for five days. The pecuniary loss award was nominal because he was a student who neither supported his parents nor contributed to the household. However, his estate was awarded damages for his conscious pain and suffering. The court aptly stated: “While the interval between injury and death was relatively short, and the decedent’s suffering may have been measured in days, it was the ordeal of a lifetime for which the appellant must be held responsible.” Id. at 512. And yet, despite the lofty language, only $275,000 was awarded and then reduced for decedent’s comparative negligence to $110,000.

In Sanchez v. City of New York , 97 A.D.3d 501 ( 1st Dept. 2012 ) , plaintiff retained an expert, recognizing that the claim for conscious pain and suffering required proof that the injured person experienced ” some level of cognitive awareness following the injury.” Cognitive awareness and the length of time are key in proving damages. Although the jury did not award damages for conscious pain and suffering, the First Department awarded $400,000 for this claim.

The burden of proof may be significant in proving conscious pain and suffering. In Cummins v. County of Onondaga , 84 N.Y.2d 322 ( 1994 ) , at trial plaintiffs failed to meet their threshold burden of proving consciousness for some period of time following an accident to justify an award of damages for pain and suffering. Decedent’s car went into a pond. No one heard decedent or saw her move after the accident. She was deceased when extricated from the car. Plaintiff’s expert was unable to provide testimony to support the contention that she was conscious when the vehicle entered the water.

However, in Rice v. Corasanti , 122 A.D.3d 1374 ( 4th Dept. 2014 ) , defendant sought in a pretrial motion to dismiss plaintiff’s claim for decedent’s conscious pain and suffering, preimpact terror and punitive damages. Although defendant submitted evidence that decedent was unconscious when found at the scene, his submissions failed to address the interval immediately after impact until decedent was found by witnesses. He did not establish as a matter of law that decedent did not see the vehicle which struck him prior to impact. Defendant had the burden of proof on the motion and failed to establish entitlement to dismissal of these claims as a matter of law.

Damage awards for conscious pain and suffering have varied in these types of cases. In Ramos v. La Montana Moving & Storage , 247 A.D.2d 333 ( 1st Dept. 1998 ) , plaintiff’s decedent was killed by an intoxicated driver. He lived for 15 to 30 minutes after suffering crush injuries. The jury awarded $3 million for conscious pain and suffering, which was reduced by the trial judge to $250,000 and increased by the Appellate Division to $900,000. In Dowd v. NYCTA , 78 A.D.3d 884 ( 2d Dept. 2010 ) , conscious pain and suffering was reduced from $1,750,000 to $1,200,000 where decedent was struck by a bus. She was conscious at the scene, went into cardiac arrest 18 minutes later, was revived and then died at the hospital 90 minutes after impact.

Where evidence is speculative, there may be no award of damages for preimpact terror or conscious pain and suffering. In Phiri v. Joseph , 32 A.D.3d 922 ( 2d Dept. 2006 ) , decedent was pronounced dead at the scene. The court found there was no evidence of preimpact terror or conscious pain and suffering. See also Anderson v. Rowe , 73 A.D.2d 1030 ( 4th Dept. 1980 ) (decedents were killed instantly and there was no evidence of preimpact terror) and Kevra v. Vladagin , 96 A.D.3d 805 ( 2d Dept. 2012 ) (conjecture and speculation are insufficient to sustain a cause of action for damages for conscious pain and suffering).

Appellate Division Decision in the Crane Case

In addressing the damage awards in Matter of 91st Street Crane Collapse Litigation, Justice Webber wrote for the unanimous bench: “The evidence supported the jury’s findings that Leo and Kurtaj both endured inconceivable preimpact terror.”

She stated that the evidence showed that the crane teetered and then fell backward from a height of 200 feet and finally crashed onto decedent Kurtaj. Decedent Leo was trapped in the glass cab. Witnesses testified that Leo was aware of his impending death and described the panic and fear on his face. They observed a series of hand movements and “putting his hands together as if praying.” They established that he was trying to brace himself even after his arms and legs were broken. Decedent Kurtaj saw the crane coming down. A medical expert opined based upon defensive injuries to his forearm, that he was aware of the crane collapsing on him and tried to protect himself from the falling crane and debris by raising his right hand to shield himself. This caused a cracking of his right wrist and the fracturing of his right leg as he became trapped in the debris.

In deciding the preimpact terror awards, the First Department did not discuss the specific period of time over which the decedents experienced their unimaginable terror before sustaining fatal injuries. That human suffering was not reduced to seconds or minutes and a calculation based on the time of suffering was a significant aspect of the decision analyzing preimpact terror. The First Department reduced the jury awards to each plaintiff of $7.5 million for preimpact terror to $2.5 million for Leo and $2 million for Kurtaj.

In determining the damages for the conscious pain and suffering of decedent Leo, the court considered the period of time he was conscious after sustaining multiple fractures to his arms and legs, and blunt trauma with near-complete decapitation. It stated that the fractures to his arms and legs indicated he was aware of his situation and tried to brace himself. The EMS technician reported him alive and conscious for approximately seven minutes after the accident. He died nine minutes after that. The court found that the jury award of $8,000,000 deviated from reasonable compensation and reduced it to $5.5 million. This was far greater than damages allowed in earlier awards, such as Ramos , 247 A.D.2d 333, with its award of $900,000 for 15 to 30 minutes of “excruciating crush injuries,” and Perez v. St. Vincents Hosp & Med Center of NY , 66 A.D.3d 663 ( 2d Dept. 2009 ) , which awarded reduced damages for conscious pain and suffering of $800,000.

With respect to decedent Kurtaj, the court reduced the damages award for conscious pain and suffering from $24 million to $7.5 million. He was observed to be in excruciating pain from the time the crane collapsed until he died four hours later. The court declined to reduce the award to the level of damages in cases such as Dowd v. NYCTA , 78 A.D.3d 884 ( 2d Dept. 2010 ) ($1.2 million) and Lubecki v. City of New York , 304 A.D.2d 224 ( 1st Dept. 2003 ) ($3 million for approximately one hour). Justice Webber, in her opinion, expressed the belief that the inconceivable pain and suffering to decedent Kurtaj demanded a variance from prior awards.

Without a doubt, the damages affirmed in Matter of 91st Crane Collapse Litigation for preimpact terror and conscious pain and suffering represent new plateaus for these types of damages in New York .