A large crane lies in an intersection after it collapsed on the East Side of Manhattan in May 2008. (AP / Dima Gavrysh)
A Manhattan appeals court has more than cut in half the wrongful death damages awarded to the families of two men killed in a horrific 2008 crane collapse. But lawyers for the families, as well as defense counsel, said the remaining amounts awarded may still be groundbreaking, especially in the area of pre-impact terror damages.
An Appellate Division, First Department, panel cut the amounts awarded by a Manhattan jury in two consolidated lawsuits from a total of $95 million to $35 million, calling the awards “excessive” and a “material deviation” from previous verdicts in wrongful death cases.
But lawyers for family members of Donald Leo, a crane operator who plummeted to his death in the May 2008 accident on Manhattan’s Upper East Side, and for construction worker Ramadan Kurtaj, still viewed the panel’s decision as a potential “game-changer” for plaintiffs’ lawyers in the personal injury and construction accident arenas.
Pointing to a lengthy unanimous opinion issued Tuesday and penned by Justice Troy Webber, the lawyers said it may have the effect of boosting accident victims’ chances of recovering significant punitive damages and, perhaps most notably, pre-impact terror damages in New York state.
The panel’s decision, while slicing the amounts awarded drastically, still sanctioned millions of dollars in damages in categories that, in the past, sometimes seemed fruitless, the lawyers said.
Leo’s mother, Maria Leo, came away with awards of $2.5 million for her son’s pre-impact terror, $5.5 million for his conscious pain and suffering and $8 million in punitive damages. After a nearly yearlong jury trial, the previous awards had been $7.5 million for pre-impact terror, $8 million for pain and suffering and $24 million in punitive damages.
Kurtaj’s family members, Xhevahire Sinanaj and Selvi Sinanovic, received $2 million for his pre-impact terror, $7.5 million for his conscious pain and suffering and $9.5 million in punitives. The amounts had been $7.5 million for pre-impact terror, $24 million for pain and suffering and $24 million in punitive damages.
“It’s very significant to the plaintiffs’ bar, who often don’t maximize the pre-death, pre-impact terror, and it is very significant to the defense bar who very often underestimate how horrific those damages are,” said Bernadette Panzella, the Manhattan-based trial lawyer for Maria Leo.
“The plaintiffs’ bar must look for circumstantial evidence of pre-impact terror, and conscious pain and suffering,” she added, noting that it appeared there had never been pre-impact terror damages in New York state in the millions of dollars before.
Susan Karten, a Manhattan-based trial attorney for the Kurtaj family, said, “It raised the bar, particularly in the area of pre-impact terror, which is an evolving area now … While the panel said the awards were excessive in terms of what the jury gave, the panel still set a precedent in terms of law, because it is the biggest verdict that’s been sustained at the [state] appellate level for pre-terror, punitives and pain and suffering.”
Nathaniel Marmur, an attorney for defendants James F. Lomma, J.F. Lomma Inc. and New York Crane & Equipment Corp., said that no decision had been reached on whether defendants will seek to appeal the panel’s ruling. Lomma and his companies are in bankruptcy, and the trustee will play a role in deciding whether to appeal.
But he also said of the First Department’s decision, “The damages so far exceed what has historically been upheld; if it’s groundbreaking, it’s only in a bad way.”
“The damages are so far out of proportion to the injury it makes it harder for companies to do business in the city,” he continued. “It so alters the risk that it will dissuade companies from the construction industry.”
In Matter of 91st Street Crane Collapse, 117294/2008, Webber, joined by Justices Rolando Acosta, David Friedman, Richard Andrias and Ellen Gesmer, addressed three issues: Whether Manhattan Supreme Court Justice Manuel Mendez correctly ruled at trial that the corporate veil could be pierced to reach the individual defendant, James Lomma, a construction magnate who owned companies responsible for replacing a bearing (or slewing) ring that broke on the crane; whether Mendez properly excluded from trial defendants’ expert witness James Wiethorn, who would have testified about the collapse’s cause; and whether the jury damages awarded were excessive.
The panel affirmed Mendez on his veil piercing and expert witness decisions, while chopping down the damages significantly. Webber’s opinion provided a detailed explanation and analysis of all three issues, and, in Panzella’s view, “the decision does exactly what the appellate court is supposed to do: It is well-substantiated, and it gives instructions to the bench and to the bar about these kinds of injuries in these kinds of cases.”
Webber laid out the factual run-up and alleged causes of the crane collapse, along with the accident and death, fully, pulling from an 11-month trial record involving about 87 witnesses.
Testimony revealed, she wrote, that a worker at Lomma’s company choose to replace a defective 69-inch diameter bearing (or slewing) ring, part of the key turntable assembly of the immense crane, using a Chinese company found on the internet that was cheaper than a known American company, even though the Chinese company had expressed doubt about its ability to correctly construct the ring.
“Lomma placed profit over the safety of construction workers and the public, despite having multiple opportunities to change course,” Webber wrote at one point.
The justice also detailed testimony that showed crane operator Leo and construction worker Kurtaj both appeared to know that their death was coming as the train collapsed. Leo, for instance, was seen putting his hands in prayer as he fell and trying to brace himself before impact, despite having broken bones.
In addressing the damages awarded, Webber wrote that the evidence of conscious pain and suffering, including the pre-impact terror—a segment of that pain and suffering—was striking.
“The evidence supported the jury’s findings that Leo and Kurtaj both endured inconceivable pre-impact terror,” she said, adding, “It is undisputed that the crane did not fall straight to the ground.”
“A medical expert testified, based on defensive injuries to Kurtaj’s forearm, that Kurtaj was aware of the crane collapsing on him and tried to protect himself from the falling crane and debris by elevating his right hand to shield himself, which resulted in the cracking of his right wrist and the cracking and fracturing of his right leg as he became trapped in the debris,” she also wrote in one example of testimony.
In addressing the substantial punitive damages given by the panel, Webber noted, “While Lomma and his companies, which dominated the crane rental market in New York, may not have intended to cause plaintiffs’ deaths, these deaths nevertheless arose from a series of calculated decisions made by Lomma over a period of months … Evidence established that when Lomma found the cost of replacing a broken crane bearing too high, he instructed an employee who had no knowledge of manufacture, welding or engineering to find an alternative source. This source was RTR, a China-based distributor, which subcontracted work to factories in China.”
Carol Sigmond, a longtime construction litigator and partner at Cohen Seglias Pallas Greenhall & Furman, said that she believed the egregious defendant actions in the case led to the large damages awards. She was not sure that the panel’s opinion should be noted as groundbreaking or as a bellwether for future litigation, as much as it should be seen as a well-explained decision addressing the facts at hand.
“The level of sheer incompetence that goes with the defendants’ actions with the [crane] plate goes beyond the pale,” she said. “The court has given us a concrete understanding, close to a black line, on what is pre-impact terror,” which is an evolving area of damages, she said.
“They’ve also given us a clear statement on what will justify piercing the corporate veil, and a concrete explanation of what justifies punitive damages,” she added.
Webber also pointed to the specific, horrific nature of the crane accident.
“As noted by defendants, there are no verdicts similar to the verdicts in this case,” she wrote. “However, there are also no cases that are similar in facts or present such a confluence of facts: catastrophic injuries leading to death, and egregious, wanton disregard for potential loss of life and property.”