Today’s edition of “What’s it Worth?” is the first of a two part series on wrongful death cases. In any wrongful death case, damages are awarded in three different categories: pecuniary losses, pain and suffering/non-economic damages, and special/economic damages. This week, we will be focusing on pecuniary losses resulting from the lack of “parental nurture and care, physical and intellectual training.” Estates, Powers and Trusts Law Section 5-4.3(a) limits a claimant’s recovery for pecuniary injuries resulting from decedent’s death, as there is no recovery for the loss of parental companionship. Please note how the age of the child and the nature of the parent/child relationship influence the amount awarded.
MATTER OF MURPHY-CLAGETT V. A.O. SMITH CORP (190311/15)
REDUCED: January 30, 2019, Appellate Division, First Department
VENUE: Supreme New York
TYPE OF CASE: Wrongful Death
FACTS: A 55 year old man was exposed to asbestos dust when he took part in removing heating systems, predominantly demolishing boilers, from residences in Brooklyn between 1972 or 1973-1982. The exposure resulted in a mesothelioma, or a malignant tumor that usually forms in the lining of the lungs, abdomen, or heart. The life expectancy of those diagnosed with mesothelioma is 12 months after diagnosis.
PECUNIARY LOSSES:
- The plaintiff was survived by twins, who were nine years old at the time of his death.
- When the children were born, the plaintiff was their primary care-giver, becoming a stay at home dad. He prepared their meals, fed them, cleaned them, bathed them, took them for walks, and later took them to parks and museums.
- The plaintiff was legally separated from his wife from 2010 until his death in 2016. Upon the separation, the children moved to California with their mother but the plaintiff spoke to them over the phone or Face-Time daily and visited them once a month.
- In 2012 or 2013, the plaintiff moved to California, 1 mile away from where his children lived. He dropped off and picked up the children from school every day.
- The plaintiff was instrumental in getting his daughter tested for a learning disability. He arranged for her tutor and took her to every session.
- The plaintiff went to all of his children’s sports games, taught them to ride bikes, and took them to the historic district.
- The jury originally awarded $17 million to the plaintiff’s son and $18 million to the plaintiff’s daughter for loss of parental guidance. The trial judge reduced the awards to $9 million and $10 million respectively. The defendants then appealed on the grounds that the amounts awarded deviated materially from what would be considered reasonable compensation. The Appellate Division reduced the awards to $1 million for each child.
- The amount awarded is intended to compensate the children of the deceased for the next 21 years (until the children are 33).
VARGAS V. CROWN CONTAINER CO., INC. (114 A.D. 3d 762)
REDUCED: November 22, 2017, Appellate Division, Second Department
VENUE: Supreme Kings
TYPE OF CASE: Wrongful Death
FACTS: A 22 year old employee of Crown Container Co., Inc. was killed when a private garbage truck lurched backward, pinned and crushed him against a dumpster in a driveway.
PEUNIARY LOSSES:
- The plaintiff was survived by a son who was one year old at the time of his death.
- At the time of the accident, the plaintiff was working two jobs: one with Crown Container Co., Inc. and one at his parent’s bodega.
- The Appellate Division, Second Department decreased the jury award from $2,000,000 to $650,000 for past and $350,000 for future pecuniary losses, for a cumulative $1 million over 16 years.
GREVELDING V. STATE OF NEW YORK (132 A.D. 3d 1332 (2015))
REDUCED: October 9, 2015, Appellate Division, Fourth Department
VENUE: Court of Claims of New York
TYPE OF CASE: Wrongful Death
FACTS: A 28 year old man was passing over a bridge on the interstate, lost control of his car on the icy road, struck a snowbank against a concrete barrier, and fell onto the roadway below.
PECUNIARY LOSSES:
- The plaintiff was survived by two children, who were 2 years old and 2 months old respectively at the time of his death.
- The plaintiff was very involved with his children’s lives, home by 5:30 every evening to ensure that he would be able to spend time with his kids.
- The deceased was especially close with his son. He would constantly hold the child, take him wherever he went, and taught him French.
- The plaintiff’s psychologist testified that the loss would take a large toll on the children, putting them at risk for substance abuse, depression, anxiety, and delinquency.
- The claimant’s mother-in-law and wife have lived with the children since the accident.
- The jury awarded $900,000 for the past loss of parental care and guidance to each child which the Appellate Division reduced to $500,000 per child. In addition the Appellate Division reduced the awards for future loss of parental care and guidance for the son from $1.1million to $900,000 and for the daughter from $1.3million to $1million. The total award for both children totaled $2.9 million. According to the Bureau of Labor Statistics, $2,900,000 in 2015 is equivalent to $3,143,799.75 in 2020.
MCHUGH V. NEW YORK CITY TRANSIT AUTHORITY (7726 8726/07)
AFFIRMED: May 22, 2012, Appellate Division, First Department
VENUE: Supreme Bronx
TYPE OF CASE: Wrongful Death
FACTS: A 66 year old widow was hit by a NYC Transit Authority bus that was making a left turn at a crosswalk in the Bronx. She was pronounced dead at the scene.
PECUNIARY LOSSES:
- The plaintiff was survived by two sons, who were 28 years old and 32 years old at the time of her death. This case is a bit unusual as pecuniary loss cases typically involve children who are under the age of 21.
- The plaintiff lived with the 32 year old and kept in regular contact with the 28 year old.
- She provided both sons with guidance and financial assistance.
- The 32 year old appears to have some type of psychological problems, often sitting in his dark bedroom alone talking to himself. He dropped out of school after his freshman year of high school. He has had multiple low paying jobs between long periods of unemployment. He never married, has no friends, and has lived with the plaintiff his whole life.
- The 28 year old graduated from college with a degree in electrical engineering. He now lives in Philadelphia working on naval ship systems. Despite living in a different state, he visited his mother often and relied on her for counsel, guidance, and support.
- The plaintiff lost her husband when she was 49 years old (her sons were 11 and 15).
- The plaintiff was a popular school lunch lady, whose job allowed her to be home with her sons after school.
- The defense claimed that there was insufficient evidence to support any award for pecuniary damages
- The Appellate Division affirmed the jury award of $82,944 for the past 3 years and $414,720 for the future 15 years of loss of parental guidance, totaling $497,664. According to the Bureau of Labor Statistics, $497,664 in 2012 is equivalent to $558,258.97 in 2020. A majority of this award can be attributed to the 32 year old son’s situation.
ESTEVEZ V. TAM (148 A.D. 2017)
AFFIRMED: March 8, 2017, Appellate Division, Second Department
VENUE: Supreme Nassau
TYPE OF CASE: Wrongful Death
FACTS: A 64 year old man wearing dark clothing was crossing the street at night during a rain storm when he was hit by a car making a left turn. The plaintiff died at the scene. There were no eyewitness accounts.
PECUNIARY LOSSES:
- The plaintiff was survived by three daughters, who were 34, 40, and 44 years old at the time of his death, one of whom lived out of state.
- The plaintiff was divorced, retired, living alone, and not providing any financial support to his daughters at the time of the accident.
- The Appellate Division, Second Department upheld the trial court’s decision to award nothing for pecuniary losses.
- The court noted that pecuniary damages are limited to the fair and just compensation of the losses resulting from the defendant’s death to the person for whose benefit the action is brought.
- In analyzing the case, the court looked to a similar 1982 case Hartman v. Dermont, in which a 64 year old widow was struck and killed by a car on a dark, rainy night. The plaintiff in the case was survived by two self-supporting, emancipated children, aged 23 and 43 and living out of state at the time of his death. One daughter testified that her mother was her advisor and counselor. The claim for pecuniary loss was dismissed based on the daughters’ age, out of state residence, and lack of proof that the daughters required any type of special education or assistance.
